Friday, February 26, 2016

LSI 41:1

Two articles in the Winter 2016 issue (41:1) of the (gated) journal Law and Social Inquiry are of particular interest to legal historians.  The first is The Institutionalization of Supreme Court Confirmation Hearings, by Paul M. Collins Jr. and Lori A. Ringhand:
This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee's role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee's role in the confirmation process and to foster the instrumental goals of senators. This research contributes to our understanding of the development of political institutions, interbranch interactions, and how institutional change affects the behavior of legal and political actors.
[Presumably their next article will be "The Deinstitutionalization of Supreme Court Confirmation Hearings."]

The second article is The People Against Themselves: Rethinking Popular Constitutionalism, by Sean Beienburg and Paul Frymer.  It is a review essay of Bruce Ackerman’s Civil Rights Revolution (2014) and Jed Handelsman Shugerman’s People's Courts (2012):
In the course of reviewing Jed Shugerman's The People's Courts: Pursuing Judicial Independence in America and Bruce Ackerman's The Civil Rights Revolution, we argue for a reassessment of the way that scholars think about popular constitutionalism. In particular, we urge scholars to resist the tendency to create a dichotomy between judicial interpretation of law and a set of nonjudicial venues in which popular constitutionalism supposedly takes place. Popular constitutionalism is temporally and contextually bound, reflected in different forms and forums at different times in US political history and always dependent on the interactions between these institutions. By implication, this suggest that judges, rather than serving as obstacles to popular understandings of law, can and have used various forms of democratic authorization to strike down legislation violating both state and federal constitutions, thus bridging judicial review and popular constitutionalism with explicit support from the citizenry.

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