Amici Curiae: Sotomayor, Law Lords and Judicial Underpants Edition
Today, TheCourt.ca inaugurates what we hope will become a regular Friday feature in our pages: Amici Curiae, a survey from across the legal blogosphere and beyond of commentary, happenings and tidbits that we think will be of interest to our readership. We welcome suggestions for items that warrant inclusion and on how we might improve this feature.
Justice Sonia Sotomayor, the U.S. Supreme Court’s 111th member and its first Latina, took her spot on the bench Tuesday in a ceremony witnessed by President Barack Obama, Chief Justice John Roberts and Ricky Martin, among others.
Where her presidential commission notes that Sotomayor possessed “wisdom, uprightness and learning,” Ronald Dworkin demurs in a piece in The New York Review of Books. In particular, he laments Sotomayor’s abandonment of jurisprudential wisdom for the prudential variety at her Senate confirmation hearings, where she presented herself as a super-neutral judging machine consumed only with “fidelity to the law.” But Sotomayor’s flight from principle to banality, Dworkin argues, was necessary in light of the “the myth of ‘fidelity to law'” and the “silly and democratically harmful fiction” that a judge can interpret and apply the Constitution without reference to her own moral and political convictions. Dworkin also examines in detail Republican Senators’ handling of Sotomayor’s decision in Ricci v. DeStefano, since overturned by the Supreme Court.
A final tidbit: While a student, Sotomayor was an editor of the Yale Law Journal, where she penned a note that analyzed issues regarding her native Puerto Rico’s ability to maintain rights to its seabed if it pursued statehood, now available online.
Law Lords’ apotheosis-of-sorts
Joshua Rozenberg, writing in The Times of London, reviews two new works that explore recent reforms to the British constitution, chief among them the abolition of the House of Lords’ judicial function and establishment of a Supreme Court. That an institution of over six centuries’ provenance has been dissolved in a trice, occasioning little public consultation or comment, is alarming to Rozenberg. Most important, though, are the consequences for the unwritten British constitution and its traditional foundation, the supremacy of Parliament. Lord Collins, one of the judges on the Supreme Court, echoes the more sanguine view wherein the new court may evolve into something “approaching the American ideal of a government of laws and not of men.” Such optimism, however, is not shared by others, including former Law Lord Neuberger, who declined to join the supreme court and said its creation “appears to have been a last-minute decision over a glass of whisky.” Neuberger offered a stiff warning, telling the BBC: “The danger is that you muck around with a constitution like the British Constitution at your peril because you do not know what the consequences of any change will be.”
U.S. in ‘stare decisis stare-down’ over corporate free speech rights
The U.S. Supreme Court interrupted its summer recess this week to rehear arguments in Citizens United v. Federal Elections Commission, which the WSJ Law Blog characterized as a “stare decisis stare-down.” The case concerns a corporation’s rights to independently advocate for or against a political candidate, in particular, whether a conservative political group’s stinging documentary about then-presidential contender Hillary Clinton ran afoul of federal campaign finance laws. Citizens United has drawn notice because the court earlier indicated that the case’s “proper disposition” requires an inquiry into whether the court should overturn two of its prior decisions, one of which was decided only in 2003. Lest anyone miss this case’s significance, Marc Ambinder predicts in The Atlantic that “the First Amendment is about to be redefined.” SCOTUSblog offers a detailed history of the relevant issues and the arguments on both sides. And Slate’s Dahlia Lithwick has a play-by-play of Wednesday’s oral arguments, which were the first to include Sotomayor.
Contract law: Jeremiah v. Pangloss
Over at Slaw, Gary P. Rodrigues has posted a response to Angela Swan, who, in her treatise “Canadian Contract Law,” warns of the malign influence specialized law reports and online legal databases have on legal argument and substantive law in general. The narrowness of specialized law reports, according to Swan, is causing “a balkanization of the law”. Worse, services like Quicklaw tend to promote a grubbing for factual similarity that so foregoes principled analysis as to herald “the beginnings of a dissolution of a Canadian common law.” Rodrigues, an optimist, objects. And Swan, in her counter-response to Rodrigues’ post, objects to his objection.
International Court of … Finance?
The increasingly global and complex nature of financial transactions necessitates the creation of a new world financial court staffed with specialist judges, Jeffrey Golden of Allen & Overy argues in the Financial Times. The current reliance on national tribunals of general jurisdiction and ad hoc arbitration are unsatisfactory, he says, because, among other things, it is “failing to produce a settled, authoritative body of law or the predictability that the markets crave and on which financial stability depends.” Golden suggests the proposal is not far-fetched: “World trade benefits from the existence of the [World Trade Organization] tribunal and the dedicated bar that it has nurtured. International financial market law is no less global or systemically relevant than international trade law.”
Will innocent man’s execution force change in death penalty?
The legal blogosphere lit up this past week with commentary about David Grann’s piece in The New Yorker concerning Cameron Todd Willingham, a man who was executed in 2004 by the State of Texas for a crime, if Grann is correct, Willingham did not commit. Dahlia Lithwick, writing in Slate, frames Willingham’s story as part of what she calls the “elusive search for the sufficiently innocent death-row victim.” Though one might hope Willingham’s case will resuscitate broad-based legal will to do away with the death penalty, Lithwick suggests, based on her analysis of recent case law, that such a view would be mistaken: “Having waited decades for an innocent victim of capital punishment, the fact that we have finally found one won’t matter at all,” she argues. “In this new America we can execute a man for an accidental house fire, while the constitution stands silently by.” Separately, the prosecutor in the case maintains that Willingham’s guilt was “never in doubt”; Grann has sought to rebut that claim.
Underwear helps justice narrow comic gap on U.S. high court
For as long as there have been rigorous studies about American supreme court justices’ ability to get a laugh from the bench, Justice Antonin Scalia has edged out his junior colleague Justice Steven Breyer for the title of Most Humorous Justice. But Breyer managed to narrow the gap in the court’s last term, Holy Hullabaloos reports, thanks in part to some not-too-subtle references to his underwear (see the transcript of oral argument for Safford Unified School District v. Redding). On the other end of the spectrum, Justice Clarence Thomas did not get a single chuckle from the pews, but that may have more to do with the fact, as The New York Times reported in April, that he has not asked a question from the bench in three years.
Domain name defamation
Controversial Fox News host Glenn Beck is trying to shut down a website, GlennBeckRapedAndMurderedAYoungGirlIn1990.com, because of its “highly defamatory domain name,” according to a report in Ars Technica. The site’s anonymous creator said in an interview that he is simply using Beck’s own tactics against the news anchor, who sparked outrage recently when he alleged that President Obama “has a deep-seated hatred for white people.” The site’s welcome message states: “We’re not accusing Glenn Beck of raping and murdering a young girl in 1990—in fact, we think he didn’t! But we can’t help but wonder, since he has failed to deny these horrible allegations.” Beck’s attorneys have gone after the domain registrar and have filed a case with the World Intellectual Property Organization claiming that the site improperly uses Beck’s trademarked name. Paul Levy, a public interest advocate, told Ars Technica that though the trademark claim is “preposterous,” a libel suit may have legs.
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