Table of Contents

The Hughes Court Docket Books: The Late Terms, 1937-1940

Barry Cushman, Notre Dame Law School

Authorities, Reasons, and Choice

Michael Sevel, University of Sydney - Faculty of Law

International Law in Domestic Courts

David L. Sloss, Santa Clara University - School of Law
Michael P. Van Alstine, University of Maryland Francis King Carey School of Law

Addressing Diversity in Post-Unitary Theories of Order

Sergio Dellavalle, University of Turin

Social Norms and Legal Design

Bruno Deffains, Université Paris 2 Panthéon Assas
Claude Fluet, University of Quebec at Montreal (UQAM) - Department of Economics

Contested Collisions: Conditions for a Successful Collision Management – The Example of Article 16 of the Rome Statute

Kerstin Blome, Independent
Nora Markard, University of Hamburg, Faculty of Law, University of Hamburg


"The Hughes Court Docket Books: The Late Terms, 1937-1940" Free Download
American Journal of Legal History, Vol. 55, December 2015, Forthcoming
Notre Dame Legal Studies Paper No. 1525

BARRY CUSHMAN, Notre Dame Law School

For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions of rendered during the late years of the Hughes Court, from the 1937 through the 1940 Terms.

The decisions examined concern the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds new light on decisions such as Erie Railroad v. Tompkins, South Carolina State Highway Department v. Barnwell Bros., Inc., Lane v. Wilson, Railroad Commission of Texas v. Pullman, and United States v. Darby Lumber Co., and helps to explain how a nine-justice Court divided evenly on one of the issues in Coleman v. Miller. The docket books often reveal the justices’ remarks at their conference deliberations over major cases, and illuminate many previously unknown changes in justices’ positions between the conference votes and their final votes on the merits.

Analysis of the voting data contained in the docket books yields some surprising results, and offers a contribution to two bodies of political science scholarship on judicial behavior: the literature on vote fluidity and unanimity norms in the Supreme Court, and the literature on the so-called “freshman effect? that some scholars have found exhibited by the Court’s newest members. In particular, the analysis documents the prominent contribution that new justices, who disdained the Court’s longstanding norm of acquiescence in the judgments of conference majorities, made to the substantial increase in the percentage of its cases that the Court decided by a divided vote. The analysis further reveals the significant part played by the last remnants of the Old Court in retarding what would become a precipitous decline in unanimity rates under Chief Justice Harlan Fiske Stone.

"Authorities, Reasons, and Choice" Free Download
Australian Journal of Legal Philosophy, 2015, Forthcoming
Sydney Law School Research Paper No. 15/88

MICHAEL SEVEL, University of Sydney - Faculty of Law

This is a critical discussion of Nicole Roughan's Authorities: Conflicts, Cooperation, and Transnational Legal Theory (Oxford University Press, 2013). One of the primary targets of the book is Joseph Raz's service conception of authority, particularly in how it deals with cases of plural authority. I argue that Roughan's criticisms fail, and Raz's view ultimately accounts for many of Roughan's examples of conflicts generated by claims of multiple authorities by way of a comprehensive moral theory, rather than narrowly within a theory of practical authority. While Roughan does not give us compelling reason to take an approach different from Raz's, her book is nonetheless a substantive and innovative contribution to moral, legal, and constitutional theory.

"International Law in Domestic Courts" Free Download
Handbook on the Politics of International Law (Wayne Sandholtz & Christopher A. Whytock, eds., 2015).
Santa Clara Univ. Legal Studies Research Paper No. 20-15

DAVID L. SLOSS, Santa Clara University - School of Law
MICHAEL P. VAN ALSTINE, University of Maryland Francis King Carey School of Law

This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in the forthcoming book Handbook on the Politics of International Law, Wayne Sandholtz and Christopher A. Whytock, editors.

Traditional accounts of international law in domestic courts focus on the distinction between monist and dualist legal systems. In monist systems, courts apply international law directly. In dualist systems, direct application is not an option, so courts apply international law indirectly, or not at all. Although this account is formally correct, it tells us very little about the functional role of domestic courts in the international legal system. In this chapter, we present a functional account that focuses on the distinctions among horizontal, vertical, and transnational legal obligations. Modern international law regulates horizontal relationships between states, vertical relationships between states and private parties, and transnational relationships between private parties whose interactions cross state lines. The role of domestic courts in interpreting and applying international law varies greatly, depending on whether the international rule at issue is horizontal, vertical, or transnational.

We demonstrate in this chapter that the willingness (or ability) of courts to apply international law — that is, the decision that a particular issue is “legal? as opposed to “political? — depends heavily on the nature of the international legal rule. Domestic courts rarely interpret or apply horizontal rules. Indeed, they often refer to treaties that regulate solely the horizontal relationship between states as “political? in nature. As a result, implementation of horizontal obligations typically involves executive, not judicial action. This is true for both monist and dualist states. In contrast, domestic courts routinely interpret and apply transnational rules, and executive branch officials play little or no role in implementing such rules. (Purely private law treaties such as the Convention on Contracts for the International Sale of Goods provide a clear example.) Again, this is true for both monist and dualist states.

It is more difficult to generalize about the role of domestic courts in interpreting and applying vertical rules, such as human rights treaties. However, the classic monist-dualist distinction does a poor job of explaining why domestic courts in some countries apply vertical rules aggressively, while domestic courts in other countries are reluctant to apply vertical (international) rules to regulate the conduct of government officers. It is in this dimension, therefore, that we seek to draw special insights into how particular political relationships may affect the willingness of domestic courts to implement international law in domestic law, and to effect legal change on their own initiative.

This chapter draws on materials from approximately two dozen countries to present an account of the role of domestic courts in interpreting and applying horizontal, transnational, and vertical international legal rules.

"Addressing Diversity in Post-Unitary Theories of Order" Free Download
GlobalTrust Working Paper 05/2015

SERGIO DELLAVALLE, University of Turin

The article focuses on one of the most significant conceptual reassessments that are necessary in order to adapt the idea of sovereignty to the demands of an open and democratic society in an ever more interconnected world. Indeed, if sovereigns have to reject their absolutistic claim, this implies that they will have to share power with other national as well as infra- and supranational or international instances. This means that the concept of sovereignty has to be relocated within a pluralistic – or better, post-unitary – legal system. Following this premise, the article analyses the epistemological presuppositions that stay behind the transition from the unitary conception of order to the view that also a multiplicity of orders should not be denounced as a pathology any longer, but accepted as a fact, on the one hand, and as a desirable perspective on the other. The first step of the analysis consists of introducing the fundamental elements of the unitary conception of order in both its variants: the particularistic and the holistic. In the further section, three approaches are sketched which overcome the unitary notion of order: systems theory, post-modernism, and discourse theory. Each of these epistemological approaches lays the ground for a specific notion of post-unitary legal order: the idea of the existence of a multiplicity of self-reliant, albeit not mutually indifferent, legal systems in the first case, legal pluralism in the second, and cosmopolitan constitutionalism in the third.

"Social Norms and Legal Design" Free Download
CIRPEE Working paper 15-20

BRUNO DEFFAINS, Université Paris 2 Panthéon Assas
CLAUDE FLUET, University of Quebec at Montreal (UQAM) - Department of Economics

We compare fault-based and strict liability offences in law enforcement when behavior is influenced by informal prosocial norms of conduct. Fault tends to be more effective than strict liability in harnessing social or self-image concerns. When enforcement relies on fines and assessing fault is not too costly, the optimal legal regime is fault-based with a standard consistent with the underlying social norm if convictions would seldom occur under optimal enforcement; otherwise liability should be strict. When sanctions are nonmonetary or when stigmatization imposes a deadweight loss, the legal standard may be harsher or more lenient than the social norm.

"Contested Collisions: Conditions for a Successful Collision Management – The Example of Article 16 of the Rome Statute" Free Download
Leiden Journal of International Law 29(2), Forthcoming

KERSTIN BLOME, Independent
NORA MARKARD, University of Hamburg, Faculty of Law, University of Hamburg

This article examines the problem of colliding international regimes by reference to the International Criminal Court (ICC) and the UN Security Council. Given the different logics or rationalities of these institutions – the Security Council is first and foremost a (power) political organ, while the ICC is in charge of legal assessment – the collision potential is high. A collision rule was therefore introduced into the Rome Statute in the form of Article 16. However, all instances of its application so far have been highly controversial. While norm application is always controversial to some extent, we argue – in reference to Thomas Franck’s work on the legitimacy of international norms – that regime responsiveness, secondary rules or a neutral application control of Article 16 could contribute to a successful collision management.


About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

Editor: Richard H. McAdams, University of Chicago


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Advisory Board

Law, Norms & Informal Order eJournal

Wilson-Dickinson Professor of Law, University of Chicago Law School

Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

Walter E. Meyer Professor of Property and Urban Law, Yale Law School

Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

Dean, University of Virginia School of Law

L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Politics

Kirkland and Ellis Professor of Law, University of Chicago - Law School

Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

Ford Foundation Professor of Comparative and Foreign Law, Yale Law School