As a prosecutor and former judge, I have been at both the receiving and pitching end of criticism of the judiciary. Criticism of judges is nothing new. It is something that we have engaged in throughout the course of our history, but now, because of the technological age in which we live, more and more people are aware of such criticism. My feeling is that if the judge cannot take public scrutiny and outcry, the judge should not be on the bench.
I was a reporter at the Daily News when the term “Turn ’em Loose, Bruce” was hung on Bruce Wright. The Daily News and the New York Post had a field day with that. Two things struck me about that. One, the reporters and editors desperately wanted a “Turn ’em Loose, Bruce” story; they just wanted that story, they wanted to get that term in the lead, and they wanted it in the headline. The other thing was that not only did the editors not understand the implications of the facts in the cases that they were writing about–usually the case involved the allegedly low amounts of bail that Bruce Wright was setting–but they didn’t even understand the facts themselves. They didn’t care about the facts. The problem was that some of the stories were serious.
The Violence Against Women Act is Congress’s reply to the lingering message of a regime of law that once encouraged and enforced the subordination of women. The Constitution clearly condemns this element of our legal past; so too, it should endorse Congress’s attempt to redress the harms that have flowed from that past.
Last June, in the course of a week, the Supreme Court issued two death penalty decisions—Atkins v. Virginia and Ring v. Arizona— which together invalidated, at least in part, the administration of capital punishment in roughly two-thirds of the American states that currently retain the death penalty on their books. Atkins prohibited the application of the death penalty to defendants with mental retardation in the twenty states without statutes already precluding such application, and Ring precluded judges (as opposed to juries) from making factual determinations that render a defendant eligi le for capital punishment in the five states where judges alone make capital sentencing determinations. In addition, Ring is likely to affect four states with hybrid sentencing schemes that mandate shared responsibility between judges and juries.
Supreme Court correspondent, New York Times. B.A. Harvard University, 1968; M.S.L. Yale Law School, 1978.
This is the revised text of remarks delivered at the June 6, 2002 Association of American Law Schools / American Political Science Association Constitutional Law Conference.
One of my favorite moments in Larry McMurtry’s wonderful novel, Lonesome Dove, comes when Augustus has to hang Jake Spoon, his feckless former Texas Ranger buddy who has gone bad by throwing in his lot with the murderous Suggs brothers. Gus half apologetically says to Jake, “I’m sorry you crossed the line,” and Jake distractedly replies, “I never seen no line, Gus. I was just trying to get to Kansas without getting scalped.” And soon justice is done.’
This Essay explores American unilateralism and the divergence between American and European attitudes toward international law. The United States, Professor Rubenfeld shows, has always displayed unilateralist tendencies. Since 1945, however, while Europe has grown ever more internationalist, the United States has spoken out of both sides of its mouth, acting both as a world leader in forging the new international order and as the world’s chief locus of resistance against that order. To understand this phenomena, Professor Rubenfeld argues, it is crucial to distinguish between two conceptions of constitutional law. “Democratic constitutionalism” sees constitutional law as the foundational law a particular polity has given itself through a special act of popular lawmaking. “International constitutionalism” sees constitutional law not as an act of democratic self-government, but as a check or restraint on democracy, deriving its authority from its expression of universal rights and principles that transcend national boundaries. The international charters and institutions that emerged after the Second World War were built on the premises of international constitutionalism. This development was broadly acceptable among elites in Europe, where World War II had come to exemplify the potential horrors of both nationalism and democracy. As a result, the true challenge international law’s supporters face today is that the existing international governance institutions are not only antinationalist, but antidemocratic–and not by accident, but by structure and design. To this extent, America, with its longstanding commitment to democratic constitutionalism, does in fact have good reason to resist international governance today. Drawing on this conclusion, Professor Rubenfeld suggests principles that could guide U.S. relations to international governance regimes, showing the kinds of international law that America could embrace without compromising its commitment to self-government.
Courts and scholars have operated on the implicit assumption that the Supreme Court’s “one person, one vote” jurisprudence put redistricting politics on a fixed, ten-year cycle. Recent redistricting controversies in Colorado, Texas, and elsewhere, however, have undermined this assumption, highlighting the fact that most states are currently free to redraw election districts as often as they like. This essay explores whether partisan fairness-a normative commitment that both scholars and the Supreme Court have identified as a central concern of districting arrangements-would be promoted by a procedural rule limiting the frequency of redistricting. While the literature has not considered this question, scholars generally are pessimistic about the capacity of procedural redistricting regulations to curb partisan gerrymandering. In contrast, this essay argues that a procedural rule limiting the frequency of redistricting will promote partisan fairness by introducing beneficial uncertainty in the redistricting process and by regularizing the redistricting agenda.
Doctrinal and Legal Evolution of Wahhabism
On August 2, 1990, Iraq attacked Kuwait. For several days thereafter, the Saudi Arabian media was not allowed to report the invasion and occupation of Kuwait. When the Saudi government was satisfied with the U.S. commitment to defend the country, it lifted the gag on the Saudi press as American and other soldiers poured into Saudi Arabia. In retrospect, it seems obvious that the Saudis, aware of their vulnerabilities and fearful of provoking the Iraqis, were reluctant to take any public position on the invasion until it was ascertained whether the United States was willing to commit its forces to the defense of the Kingdom and eventually the liberation of Kuwait.
A Theory of Freedom of Expression for the Information Society
In this essay, Professor Balkin argues that digital technologies alter the social conditions of speech and thereforeshould change the focus of free speech theory, from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation, to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning-making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual’s ability to participate in the production and distribution of culture. Balkin argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.
By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and extend their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values-interactivity, mass participation, and the ability to modify and transform culture-must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will thus increasingly fall to legislatures, administrative agencies, and technologists.
