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This book has proposed an organisational prism for the comparative understanding of the judicial systems of France, the United States, and the European Union, one that turns on the bifurcated or integrated structure of their respective argumentative practices and on their institutional or argumentative means of generating judicial legitimacy. Whereas the French Cour de cassation model is known for its radical bifurcation, the U.S. Supreme Court discourse is precisely (and in contrast) the publicly integrated or conglomerate form of its legitimating judicial argumentation, which is to say the way in which it integrates both its more formalising and its more policy-oriented discourses in one and the same publicly accessible space: the judicial opinion itself. This approach obviously places enormous power in — but also enormous strain on — the American judicial decision. The European Court of Justice model softens the radical French bifurcation by publishing and thus tempering its two discourses.

This book offers a major reassessment of comparative law theory aud practice, doing so from within the traditional core of the American discipline of comparative law. It represents in many respects a return to, or continuation of, classic debates about the similarities and differences between common law and civil law, mainly by disaggregating the issues of judicial transparency and accountability, democratic debate and deliberation, and judicial legitimacy in order to produce a detailed comparative analysis of the complex and often counter-intuitive relationships between them. This book looks at courts that are emblematic of civilian and common law judicial practice: the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice.

This chapter looks critically at the doctrine that advisory opinions are nonbinding, with no legal force or effect, the chief distinction between advisory opinions and appellate decisions. This chapter begins with an analysis of the awkward relationship between advisory opinions and judicial review, and argues that advisory opinions, typically opinions on constitutionality, adopt the reasoning and style of appellate decisions in order to affirm the judicial legitimacy of advisory opinions. This chapter then argues that the nonbinding doctrine counterbalances that by arguing that whatever the similarity between advisory opinion and appellate decision, the doctrine affirms that the opinion has no legal force or effect. This chapter tracks the history of nonbinding doctrine and looks into its weak textual foundation. Finally, this chapter argues that nonbinding doctrine fails. Virtually no one, including, often, the advising justices themselves, believes it, and for all relevant purposes the doctrine is pretty much ignored. The reason is clear. When state supreme court justices offer advice, it is an offer that can’t be refused.

Harm-amelioration practices clearly keep the courthouse door open for constitutional losers to redeem constitutional meaning in different times and contexts and make it difficult for us to deny the “never-say-never” features of rights adjudication. Never-say-never terrain may seem dangerous to some, for it arguably gives us insufficiently authoritative statements of constitutional meaning, is susceptible to arbitrary judicial action, and puts judicial legitimacy on shaky ground. In particular, some may be concerned that it threatens our system of precedent, in which prior decisions are seen as final resolutions of rights disputes that control what justices do in subsequent controversies. These fears are illusory. Nothing in harm-amelioration practices compromises either precedent, which is central to our system of judicial review, or appropriate finality in Supreme Court decisions. This chapter shows that harm-amelioration practices only help us learn to value precedent and finality differently. Moreover, there are very good reasons to welcome the types of contingencies and opportunities for enhancing judicial legitimacy that result from harm-amelioration practices. Such practices can help us ground judicial legitimacy in new understandings of the inherently democratic character of the Supreme Court.

Fiona de Londras’ chapter argues that judicial innovation is an important and legitimate part of constitutional evolution, taking into account the broader constitutional tradition and structure within which Irish superior courts operate. de Londras defends judicial power generally based on her claims that it leads to better outcomes and that it should be understood as just one part of a broader and ongoing constitutional ‘eco-system’. This chapter mounts a defence of such innovation, arguing that persistent discomfort is founded on (a) an over-weighting of the role of the courts and failure to recognise the ecosystemic nature of constitutional interpretation, (b) a restricted conception of the constitution that underplays its teleological nature, and (c) a misrecognition of judicial pronouncements as ‘the final word’.

The book concludes with reflections on two major concerns that some readers are likely to express. First under our system of separation of powers, is it appropriate for courts to intervene in issues of education policy and administration? Second, is this approach plausible? Would judges agree to take on such an active role in promoting preparation for civic participation in the schools, and would policy makers, educators, and the public accept such a stance? The chapter answers these concerns and ends with some thoughts about the profound impact that a decisive judicial stance on education for capable citizenship would have for the continued integrity of American democratic culture and the American political system.

Claire Michelle Smyth’s chapter examines the question of socio-economic rights in the Irish Constitution. She argues that it is possible to identify the avenues for constitutionalisation of socio-economic rights without the need for express incorporation by way of referendum. Beginning with an overview of the case which cements the status of social and economic rights in the Irish Constitutional order, this chapter examines the potential of reinvigorating the doctrine of unspecified rights, utilising the power of Article 45 and analysing the legitimacy of the Supreme Court’s reasoning to refuse judicial intervention. It concludes that Irish courts need to re-evaluate their stance and embrace the value of social and economic rights and to actively engage with their obligation to protect and vindicate the personal rights of the citizen.

This chapter identifies realpolitik influences on the implementation of the proposed method for judicial review. It dispels the formalist notion that the judicial embrace of the method—any method—will itself assure its faithful operation. The chapter acknowledges the importance of judicial methods both for case adjudication and for judicial legitimacy. But, in light of the “flux and pressure of contemporary events,” it also identifies a crucial role for legal advocates and the American populace. It posits that careful judicial scrutiny in practice often results from a ragged combination of law and politics. This chapter’s final section tightly illustrates the impact of this kind of advocacy and pressure in Dr. Wen Ho Lee’s national security prosecution debacle. Dr. Lee’s story uplifts the realpolitik insight that there “is a symbiotic relationship between politics and law, in which civil society’s appeal to law informs politics, and that politics reinforces the law’s appeal.”

Oran Doyle’s chapter argues that more needs to be done to instantiate the rule of law ideal: administrative action potentially undermines the rule of law, since individuals may have no opportunity to tailor their activities to legally binding directives before they are issued. The chapter notes that there are tentative indications in the case law that the courts may recognise a new constitutional doctrine constraining legislative grants of administrative power. Doyle critically assesses the emergence of this doctrine and seek to influence its development, disentangling it from a confusing association with the rule against the delegation of legislative power. Notwithstanding the absence of any clear textual basis, the chapter argues that recognition of this doctrine would be a legitimate exercise of judicial power.

This chapter distills the book’s responses to two pivotal questions. If a sweeping, politically driven curtailment of fundamental liberties happens again, would the Korematsu majority’s highly deferential 1944 approach be expanded to new purposes to legitimize present-day transgressions of essential democratic liberties? Or would the courts undertake watchful care over those liberties by scrutinizing the government’s claim of necessity so that the talismanic incantation of national security itself does not enervate the judicial role? The chapter coalesces prior themes by first linking rubber-stamp judicial passivity to the deeply problematic shadow side of national security law; second by highlighting Korematsu and its coram nobis reopening as a cautionary tale; third, by repudiating Korematsu’s unconditional deference to the government’s claim of necessity; fourth by implicating judicial legitimacy in affirming Korematsu’s stated commitment to careful judicial scrutiny; and finally, by moving toward justice by breaking a key link in the chain of enduring injustice.

This concluding chapter focuses on the doctrine of the ‘equity of the statute’, according to which courts can go beyond the literal meaning of a statute—either narrowing or broadening—in order to avoid perverse results. It distinguishes between two versions of the equity of the statute: an older one in which some external standard of morality is brought to bear to override the normal operation of a statute; and a more modern version of the equity of the statute in which statutory language is interpreted in a contextual manner and construed with a view to its purposes. Famous examples of the equity of the statute, in both versions, can be found in courts’ treatment of the Statute of Frauds. Although traces here and there of the older—independently moral—version of the equity of the statute can still be found, the chapter argues on grounds of separation of powers, rule of law, and judicial legitimacy, that the modern view is defensible and desirable, whereas new applications of the older version would be neither. Similar issues of equity arise with respect to all other instruments, notably including contracts, wills, and treaties.