Amici Curae: Wise Women, ‘Crush’ Videos and Supreme Court Poetry Edition
Given the recent furor in certain quarters over Justice Sotomayor’s “wise Latina” remark, it was only a matter of time before the topic of gender and judging attracted additional scholarly gloss. A law and economics quartet has trudged through mounds of U.S. judicial data and concludes that “female judges are less qualified, based on traditional metrics, than male judges” but that “when it comes to performance rather than qualifications, we find no statistically significant differences between the decision-making ability of male and female judges …” One possible explanation: Justice Sotomayor is right. “Women might be better judges than men, and that would explain why less experienced women perform just as well as more experienced men,” write Stephen Choi, Mitu Gulati, Mirya Holman, and Eric Posner in a breezy summary of their work in Slate. Their full paper is available on SSRN. The blawgosphere reaction can be found over at LexMonitor.
UK supremes (re)open for business
SCOTUSblog, meet UKSCblog: Its name doesn’t quite have the same ring to it, but the unofficial blog of the Supreme Court of the United Kingdom is up and running, and Conor Gearty is in full swoon about the new court and what it might mean for the renovation of the British constitution. Gearty makes a case that the court’s physical removal from “a hidden-away passage in the upper unelected chamber [Britain’s] ostensible democracy” to a “grand and suitably nouveau gothic building” will affect its jurisprudence. The decidedly New Labour-ite Gearty dismisses what he calls the “knowing lawyers'” cynical response that the court’s creation is but “noise designed to camouflage the substantive silence within.” He optimistically argues that the court will soon expand its limited powers to strike down legislation and, by dint of the court’s physical and statutory independence from Parliament, emulate its Canadian counterpart, among others. As Max Way has recently suggested in these pages, though, the court could perhaps choose another model.
Separately, in their new incarnation, the British supremes have become quite the media darlings. The Times of London was tickled by the “odd legal nicety” of the deputy president swearing in his boss when he was not technically sworn in himself and appreciated Lady Hale’s choice to wear a hat to her swearing in. SkyNews also has a walking tour of Middlesex Guildhall, the court’s impressive building. Finally, be sure to visit the court swanky website, which offers a treasure trove of information including “customer satisfaction survey results” (not entirely clear what these are), an organization chart (curiously, the justices are missing, but there is a “chief executive” at the top) and the Supreme Court poem (written by Andrew Motion, the UK poet laureate). Oh, and judgments of the Court are also available.
U.S. high court set to ‘crush’ animal cruelty law
The coming decision after the recent U.S. Supreme Court hearing of U.S. v. Stevens may spell the constitutional end of the federal law banning “any visual or auditory” depictions of animal cruelty “for commercial gain,” SCOTUSblog notes. The legislative history of the 1999 statute indicates that Congress’ intent was to place a ban on “crush” videos. Grandly setting forth a bestial version of the Hefner/Joyce obscenity continuum, the lawyer for the petitioner — a commercial distributor of dog-fighting videos — argued that the statute was too vague. The law’s overbreadth, the court was told, was such that it could even ensnare not only the “very, very, very concerned” naifs who produce and market hunting videos, but also “sketch artists” and hieroglyphicists. The Third Circuit bought the argument, finding the statute violated the First Amendment, but at the Supreme Court, a tart, skeptical, and outnumbered Justice Alito wondered, “And … in the real world is there a market for sketches of dog fights?”
It’s lonely at the ECJ
Vassilios Skouris was re-elected to another three-year term as the president of the European Court of Justice, but the news did not travel far or wide. Adjudicating Europe bemoans that reality: “[T]he nomination of a Chief Justice is a momentous event in the United States, for lawyers, politicians, civil society and even the outside world,” but with respect to President Skouris’ reappointment this week, “it appears as if nobody has realized, or simply doesn’t seem to care … Europeans hold a very high concept of their highest Court, but when it comes to decide its future (and their future too) nobody seems to give a damn.” Perchance a hat for President Skouris might do the trick?
A constitutional coup d’etat
Perhaps the “Israeli mercenaries” presently bathing deposed Honduran president Manuel Zelaya in “toxic gasses and radiation” have gotten to the Law Library of the U.S. Congress. The New Republic’s James Kirchick writes that Congress’ legal research arm has issued a report on the constitutionality of Zelaya’s removal from office that is utterly at odds with the Obama administration’s continuing insistence that his deposition was a coup d’etat. The Honduran military, the report says, may have acted in excess of its orders in removing Zelaya from the country, but the original orders of the country’s Supreme Court to depose and arrest him were constitutionally sound. According to Kirchick, the Honduran judicial and legislative branches’ response to a Zelaya-fomented constitutional crisis — itself more reminiscent of a coup d’etat than was his deposition — was “remarkably orderly and legalistic, especially in a region where the rule of law is so tenuous.” The U.S. government, Kirchick says, “now finds itself on the same side as leaders like Hugo Chavez and Raul Castro,” and the reason may lie in the “core tenet of [Obama’s] diplomatic strategy” of apology and reconciliation.
Illinois Supreme Court upholds ‘Jewish clause’ in will
Max Feinberg’s will, on first glance, appears fairly ordinary — that is, until one finds the clause specifying that “any descendant who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year would be disinherited,” explains David Shulman of the South Florida Estate Planning Law blog. One of Feinberg’s grandchildren sued his estate, arguing that the provision should be void for public policy. Illinois district and appellate courts agreed, but a passionate dissent (“Max and [his wife] Erla had a dream … to preserve their 4,000 year old heritage”) foreshadowed a bigger fight. The Illinois Supreme Court reversed, but seems to have done so without tackling the hot-button issue. Shulman is glad the court reached the outcome it did, but its decision has got him thinking: “What if someone asked me to draft a trust which disinherited a grandchild for ‘marrying someone outside of the white race’?” Perhaps it’s time to pull out the ol’ Shelly v. Kraemer and RWDSU v. Dolphin Delivery Ltd.?
Special Prosecutor: Television
A recent episode of Law & Order put on trial a fictional Jay Bybee/John Yoo hybrid for conspiracy to commit torture. In Harper’s, Scott Horton notes that the show’s writers have risen above the pundit class in grappling with the fact that the “the core of the torture controversy revolves around homicides, and that torture prosecutions by their nature involve conspiracy offenses implicating all those in the decision-making chain.” Horton puts hard questions to Rene Balcer, the show’s head writer, about the episode’s anti-verisimilitude, specifically the Bybee/Yoo character’s obscure and improbable legal tactics. Balcer disagrees, saying that the character’s hyper-cleverness is true to the pseudo-methodology employed by the Bush-era Office of Legal Counsel. Balcer says that the arguments in the so-called “torture memos” “often [seemed] like the work of first-year law students” who, “faced with the impossible task of legally justifying the President’s use of torture … had to strain their legal wizardry to absurd limits.”