Law & Politics Book Review: Werner Menski's 'Comparative Law in a Global Context'

Law & Politics Book Review has an extensive review by Maxwell O. Chibundu (Maryland Law) of the second edition of Comparative Law in a Global Context: The Legal Systems of Asia and Africa (Cambridge UP, 2006) by Werner Menski (SOAS London). This is from the review:

"This is a sprawling, engaged and engaging study in comparative jurisprudence. It provides, as the title indicates, an extended comparative study of the legal systems that function in Africa and Asia, notably those of “Hindu law,” “Islamic law,” “African laws” and “Chinese law.” But it seeks to do much more than that. It takes on conventional claims in contemporary Anglo-American jurisprudence on the nature, sources and scope of law, and finds the dominant accounts of the concept of law within this jurisprudence flawed and incomplete." (...)

"Menski’s core thesis is that the search for a uniform set of rules for a global order is bound to be futile because laws embody and reflect the socio-cultural particulars and experiences of functioning societies, and which, although transmitted longitudinally within the society, are nonetheless complex, fluid and dynamic. Any adequate theory of law and of a legal order therefore must, among other considerations, take account of the particularized socio-political institutions of the society, that society’s belief systems, its politics and its history. The one universal characteristic of all legal systems, he claims, is thus the inherent tendency towards “plurality-consciousness.”" (...)

"Teachers who are genuinely interested in arming their students with effective long-term tools with which to deal in a heterogeneous world, as it in fact is, has been, and will likely remain, should find this book very helpful."

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Judicial Review and New Governance (Scott and Sturm)

Joanne Scott (UCL, London) and Susan Sturm (Columbia) have posted Courts as Catalysts: Rethinking the Judicial Role in New Governance on SSRN (Columbia Journal of European Law 2007). This is the abstract, below are some brief comments:

This Article offers a step forward in developing a theory of judicial role within new governance, drawing on the emerging practice in both the United States and Europe as a basis for this reconceptualization. The traditional conception of the role of the judiciary - as norm elaborators and enforcers - is both descriptively and normatively incomplete, and thus needs to be rethought. There is a significant but limited role for courts as catalysts. In areas of normative uncertainty or complexity, courts prompt and create occasions for normatively motivated and accountable inquiry and remediation by actors involved in new governance processes. Catalysts thus facilitate the realization of process values and principles that are crucial to new governance's legitimacy and efficacy by the institutional actors responsible for norm elaboration within new governance. The relationship between courts and governance is dynamic and reciprocal: courts both draw upon the practice of governance in their construction of the criteria they apply to their judgments; and provide an incentive structure for participation, transparency, principled decision-making, and accountability which in turn shapes, directly and indirectly, the political and deliberative process.

This Article elaborates three crucial aspects of the catalyst role, drawing on examples from the European Union (E.U.) to illustrate how courts can exercise their decision-making authority to enhance the capacity of other actors to make legitimate and effective decisions. First, courts prompt new governance institutions to provide for full and fair participation by those affected by or responsible for new governance processes. We focus in this Article upon the courts' role in evaluating standing in the European courts (locus standi). Second, courts monitor the adequacy of the epistemic or information base for decision-making within new governance. We explore this role through the example of the European court's construction and interpretation of benchmarks for legality in judicial review. Finally, courts foster principled decision-making in new governance processes through requiring transparency and accountability as an essential element of enforceability. We illustrate this role through examples where the European courts evaluate the adequacy of deliberative processes by whether they have identified, justified, and applied criteria guiding their decisions.

A few brief notes: As with Cass Sunstein's famous 1989 article Interpreting Statutes in the Regulatory Age, Scott and Sturm's very interesting piece also raises the question of whether 'new' settings for judicial review - 'the regulatory age' for Sunstein, 'new governance' for Scott and Sturm - represent new, qualitatively different conditions and challenges for courts or whether they are better understood as institutional and normative environments in which renewed attention to undervalued dimensions of judicial review generally may be especially valuable. In his article, Sunstein noted on the one hand that the demands of the modern administrative state made it impossible for courts to sustain certain theories of interpretation, but at the same time admitted in a footnote that Roscoe Pound had voiced similar issues over 80 years ago. That of course did not mean that his theory was not valuable, even if the conditions in and for which it was conceived were not entirely 'new'.

So too with Scott and Sturm's article, in my view. It may be that their comments are most profitably understood not within the limited context of the 'new governance' debate, but as a revaluation of a number of generally neglected aspects of judicial review. Two of these dimensions stand out. (1) Scott and Sturm rightly, in my view, stress the impossibility of distinguishing between procedural and substantive elements in judicial review. 'New governance' settings provide especially accute illustrations of the many ways in which these two elements are intertwined. (2) The article is also especially interesting in its emphasis on 'structural' conceptions of the role of courts, rather than - as is traditionally often the case - on their roles in effectuating individual rights or solving specific conflicts. This element becomes particularly evident in the authors' original discussion of standing requirements at the European Court of Justice (esp. p. 14 in the SSRN version).

Scott Shapiro on the Hart-Dworkin Debate ('A Short Guide for the Perplexed')

Scott J. Shapiro (University of Michigan Law School) has posted The "Hart-Dworkin" Debate: A Short Guide for the Perplexed on SSRN (U of Michigan Public Law Working Paper No. 77). This is the abstract:

For the past four decades, Anglo-American legal philosophy has been preoccupied - some might say obsessed - with something called the 'Hart-Dworkin' debate. Since the appearance in 1967 of 'The Model of Rules I,' Ronald Dworkin's seminal critique of H.L.A. Hart's theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin's objections or defending Dworkin against Hart's defenders. My purpose in this essay is not to declare an ultimate victor; rather it is to identify precisely the core issue around which the debate is organized. Is the Hart-Dworkin debate, for example, about whether the law contains principles, as well as rules? Or does it concern whether judges have discretion in hard cases? Is it about the proper way to interpret legal texts in the American legal system? Or is it about the very possibility of conceptual jurisprudence?

Although trying to capture the essence of a philosophical debate can be tricky, I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin's basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well.

This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice.As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law.

The Hart-Dworkin debate, I also try to show, is not a monolithic entity. In the second half of the paper, I describe how Dworkin modified his critique to circumvent the responses of Hart's followers, thereby inaugurating a new phase in the debate. Virtually no attention, however, has been paid to this latter challenge, which is especially surprising given that none of the previous positivistic defenses are helpful against it. I then sketch out a possible response positivists might offer to this extremely powerful objection.

Caprice Roberts on the Dangers of Quantifying Judicial Activism

Legal Theory Blog notifies publication on SSRN of In Search of Judicial Activism: Dangers in Quantifying the Qualitative by Caprice Roberts (West Virginia University College of Law; Washington and Lee University - School of Law). This is the abstract:

This article explores the meaning of judicial activism, critiques recent empirical efforts to resolve the debate quantitatively, and provides a new framework for conceptualizing purported activist behaviors. This framework demonstrates the inherent complexity and subjectivity of the phrase judicial activism. The ultimate goal of my article is to focus attention on the qualitative issue – the appropriate role of the judiciary. Legal empirical scholarship is increasing in number and force. Recent efforts to quantify judicial activism, however, ignore the complexity of identifying what constitutes inappropriate uses of judicial power. Empirical attempts to pinpoint the true activists create risks of sweeping misinterpretations and improper labeling of judges. For example, Professor Lori Ringhand offers empirical data to warrant that the “conservative” justices of the Rehnquist Court engaged in “activism” by invalidating legislation and overturning precedent. My article offers a healthy skepticism of such empirical claims and then a fresh conceptualization for helping us through the morass of the judicial activism debate. Judicial activism is a creature of loaded qualitative meanings and thus resistant, in many respects, to quantitative analysis and conclusions. Despite the appeal of legal empirical scholarship in this nebulous arena, failure to capture the full meaning of the term skews the core debate regarding judicial power and restraint. We cannot cloak ourselves in the security of empirical certainty. Instead, we need deeper dialogue on the complexity of judicial decision-making and the judiciary's role. It is imperative that we not lose sight of the heart of the matter – the proper role of the judge in our constitutional democracy.

In: 74 Tennessee Law Review (2007).

Jonathan Siegel's Reply to Adrian Vermeule's 'Judging Under Uncertainty'

The George Washington Legal Studies Research Paper Series has a reply by Jonathan Siegel (GWU) to Adrian Vermeule's book Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (Harvard UP, May 2006). Siegel's article will appear in 92 Minnesota Law Review (2007-2008).

This is the Harvard University Press abstract of Vermeule's book:

How should judges, in America and elsewhere, interpret statutes and the Constitution? Previous work on these fundamental questions has typically started from abstract views about the nature of democracy or constitutionalism, or the nature of legal language, or the essence of the rule of law. From these conceptual premises, theorists typically deduce an ambitious role for judges, particularly in striking down statutes on constitutional grounds. In this book, Adrian Vermeule breaks new ground by rejecting both the conceptual approach and the judge-centered conclusions of older theorists. Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. Drawing upon a range of social science tools from political science, economics, decision theory, and other disciplines, he argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty. In view of their limited information and competence, judges should adopt a restrictive, unambitious set of tools for interpreting statutory and constitutional provisions, deferring to administrative agencies where statutes are unclear and deferring to legislatures where constitutional language is unclear or states general aspirations.

...and this the abstract of Siegel's reply:

This article responds to Professor Adrian Vermeule's new book, Judging Under Uncertainty. Professor Vermeule argues that (1) no one can empirically determine whether judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text has any positive net benefits, but (2) we do know that such interpretive methods impose costs, and therefore (3) courts should discard such interpretive methods. This article suggests that (1) it is far from clear how costly these interpretive methods are, (2) it is also not clear that discarding them would result in any cost savings, both because of costs that would remain if only some judges adopted Professor Vermeule's theory and because, even if all judges adopted it, cost savings from the use of simpler interpretive methods might be offset by other, new costs, such as the costs imposed by judicial enforcement of clear but erroneously drafted statutory text that leads to absurd results, and (3) there are institutional reasons to believe that courts do get net benefits from methods that permit them to look beyond plain statutory text in some cases; most notably, the fact that courts interpret statutes at the moment of implementation puts them in a good position to detect statutory drafting errors. For these reasons, the article recommends against adoption of Professor Vermeule's interpretive theory.

Law & Politics Book Review: Jeffrey Rosen's "The Most Democratic Branch: How the Courts Serve America"

Vol. 17 No.8 (August 2007) of Law & Politics Book Review has a an article by prof. Jack E. Call (Radford University) reviewing Jeffrey Rosen's The Most Democratic Branch: How the Courts Serve America (OUP 2006). This is from prof. Call's review:

"Public opinion polls suggest that three commonly held views of the courts are that they 1) exist to protect ordinary people from the tyranny of the majority (or perhaps the elite); 2) they are out of tune with what the majority of Americans desire; or 3) they are rather closely in touch with and follow public opinion. In THE MOST DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA, Jeffrey Rosen argues not only that the courts (by which he usually means the Supreme Court) have generally followed public opinion but that they should follow it. When they do not, they engage in judicial unilateralism, defined as “a court’s decision to strike down federal or state laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people” (p.8). Rosen argues that when the Court engages in judicial unilateralism, its decision usually results in undesirable consequences".

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