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Category Archives: Legal Research

Working Without a Net: Supreme Court Decision Making as Performance

Gedicks, Frederick Mark, Working Without a Net: Supreme Court Decision Making as Performance (February 17, 2017). BYU Law Research Paper No. 17-09. Available at SSRN: https://ssrn.com/abstract=2919682

“A Depression-era Justice once suggested that in constitutional challenges the Supreme Court simply compares government action to the Constitution and decides “whether the latter squares with the former.” Chief Justice Roberts more prosaically compared the Justices to baseball umpires. Both expressed the conventional view that judges are and properly should be helpless to alter the outcomes dictated by law writ large. This is mostly false humility. Judges are nothing so much as illusionists, and their opinions sleights of hand which obscure that judges are not bound by the law in the powerful sense they suggest, but participate in creating what they purport merely to apply. This is especially the case in the Supreme Court, from which there is no appeal. The Justices perform constitutional law, and their opinions are the records of these performances. Performance theory supplies a better means of analyzing and criticizing Supreme Court decisions than ubiquitous attacks on judicial integrity. The idea that judges can uncover the law untainted by justice, social need, personal preference, or other judicial taboos rests on a largely rejected metaphysics that nonetheless retains a powerful cultural hold. The Court has its precedents, but they have no connection to a pre-existing natural order, and often not even to a determinate text. The Court’s readings of its precedents form a tradition that is rarely so fixed as to yield only one possible result in a new case. This makes the Court’s constitutional decision making the purest of performances — holdings and citations are “iterated,” shorn from their original contexts and dropped into new ones, creating new and surprising principles that masquerade as old and established. It is banal and unhelpful to call this dishonest. The Justices cannot admit their performative role because it cannot be reconciled with still-powerful higher-law and rule-of-law myths. If law does not exist outside the case in which the judge applies it, if it is not a stable premise of judicial decision making but a function of the judge and the situation, how are we governed by “law rather than men”? The necessity of performing constitutional law stems from the general absence of an underlying text that can constrain that performance; there are, instead, multiple indeterminate texts, which makes performance inevitable. The Justices are always working without a net, performing constitutional law in opinions with nothing underneath. Sometimes they pull off a convincing performance, but sometimes they don’t. It’s important to know the difference.”

How reporters around the world risk their lives for the truth

Via GOOD – “Last May, the United Nations Security Council met to discuss a problem tragically common in the 21st century: dead journalists. In the new millennium, 876 journalists have been killed—with almost 40 percent of those deaths occurring in the last five years. Meanwhile, global press freedom is at its lowest point since 2003,… Continue Reading

A Critique of the Conventional Problematisation of Social Immobility in Elite Legal Education and the Profession

Ferguson, Lucinda, Complicating the ‘Holy Grail’, Simplifying the Search: A Critique of the Conventional Problematisation of Social Immobility in Elite Legal Education and the Profession (February 16, 2017). The Law Teacher, Vol. 51, (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2919051 “This article challenges the conventional problematisation of and response to insufficient socio-economic diversity in elite legal education… Continue Reading

CrowdJustice

“CrowdJustice is a crowdfunding platform built for legal cases. We launched in May 2015, as a way to democratise access to the legal system. We wanted to help make the law a powerful tool for everyone – not just a tool for the powerful. We’ve since seen cases challenge the government, go to the Supreme… Continue Reading

That One Privacy Guy’s Guide to Choosing the Best VPN

“The following is intended to be a detailed guide to answer the question, “How do I choose the best VPN (for me)?” The reason this is a hard thing to help people with, is that their needs and level of technical knowledge vary greatly – there is no one perfect VPN, they all have at… Continue Reading

The real National Treasure: US presidential libraries

Oxford University Press Blog: “…A presidential library is actually two things,” Giller [Melissa Giller, Chief Marketing Officer for the Ronald Reagan Presidential Library and Institute in Simi Valley, California] describes. “It’s a museum that anyone can come and visit and tour through…and it is a library.” The library is, more often than not, the private… Continue Reading

WaPo – Memos signed by DHS secretary describe sweeping new guidelines for deporting illegal immigrants

David Nakamura, The Washington Post – “Homeland Security Secretary John Kelly has signed sweeping new guidelines that empower federal authorities to more aggressively detain and deport illegal immigrants inside the United States and at the border. In a pair of memos, Kelly offered more detail on plans for the agency to hire thousands of additional enforcement… Continue Reading

Some animal welfare data removed from USDA site is restored

Follow up to previous postings – Animal welfare information wiped from USDA website – today via The Hill – USDA reposts some animal welfare records after outcry: “The Department of Agriculture on Friday  February 17, 2017] reposted some of the animal welfare records it had removed from its website, after outcry from animal rights groups… Continue Reading

WaPo – NASA is posting climate change science info on social media that contradict views of Trump and his top officials

NASA is posting climate change science info on social media that contradict views of Trump and his top officials: “If you peruse NASA’s social media feeds dedicated to climate change, you would have no clue a new administration has taken power that has expressed doubts about the reality or seriousness of the issue. Every day, NASA has… Continue Reading

Politico posts 19-page internal GOP policy brief on Obamacare repeal and replace

Via Politico: Internal GOP Talking Points and Plans for Replacing Obamacare – Policy Brief and Resources – “Obamacare has failed. Six years after the enactment of Obamacare, here’s what we know: This law has failed the American people. Insurance markets are collapsing. Premiums and deductibles are soaring. Patients’ choices are dwindling. The law has failed… Continue Reading

Membership of the 115th Congress: A Profile

Membership of the 115th Congress: A Profile, Jennifer E. Manning, Senior Research Librarian. February 10, 2017. “This report presents a profile of the membership of the 115th Congress (2017-2018) as of January 4, 2017. Statistical information is included on selected characteristics of Members, including data on party affiliation, average age, occupation, education, length of congressional… Continue Reading