<abstract xmlns="http://www.w3.org/1999/xhtml">This article examines the relationship between Politics and Law in U.S. Supreme Court decision-making. It argues that three major developments in recent decades have combined to undermine the Court’s status as a legal and judicial institution, and instead define it as political actor, motivated by ideology and the personal policy predilections of the Court’s Justices. The first of these elements is the increasingly political and partisan nature of the Supreme Court appointment process, as witnessed by the recent Gorsuch and Kavanaugh nominations. The behaviour of the President and Senators in these controversial appointments conclusively demonstrates that the country’s leading politicians view the Court as primarily a political body rather than a legal one. The second element of the assault on the Court’s status as a judicial institution is the rise in influence of the behaviouralist school of Supreme Court analysis. Beginning with the work of academics such as Glendon Schubert, the behaviouralists employed new methods and theories in an attempt to debunk the Legal Model of Supreme Court decision-making and to replace it with what is known today as the Attitudinal Model. It forcibly argues that Supreme Court Justices are political in intent and decision, with legal language and arguments being no more than judicial camouflage to disguise their true nature. This applies equally to both conservative and liberal justices. The article identifies the third element of the assault on the status of the Court as a legal institution as coming from Originalist scholars, activists and judges who accuse liberal Justices of having abandoned traditional interpretive methods in favour of redefining the language of the Constitution to suit their progressive political agenda. Originalists acknowledge that their own interpretive methods may lead to results deemed unacceptable to contemporary Americans, but argue that it the duty of the political branches of government, not the courts, to modernise policy and practice. This article concludes that while Originalism has genuine appeal as a theory of interpretation, it is nevertheless both impractical and undesirable. Moreover, rather than returning the Court to the Legal Model, the Originalist campaign has only served to persuade many that the Attitudinal Model is an accurate one. However, the article also argues that the break with Originalism by the Warren Court over segregation has developed into a wholesale change in the Court’s role in American government, one that ill-becomes the unelected judiciary in a representative democracy. It is argued here that the best way to restore the legal and judicial identity of the Court would be a return to the emphasis on ‘judicial role’, once championed by great jurists such as Learned Hand, Oliver Wendell Holmes, Louis Brandeis and John Harlan II. Judicial modesty and restraint would distinguish the Court from the political branches of American government. The Court should decide less and only where the case for a decision of unconstitutionality is very clear and very compelling.</abstract>

Politics and Constitutional Law: A Distinction without a Difference?

<abstract xmlns="http://www.w3.org/1999/xhtml">A central concern for any U.S. presidential administration is its relationship with the federal judiciary. For an administration, this relationship is potentially legacy making or breaking in two ways. First, what is the imprint that the administration leaves on the judiciary? Will a president have the opportunities and institutional capacity to change the political balance of the federal judiciary? Second, how will the judicial branch respond when the administration’s policy plans are, as many inevitably will be, challenged in the court system? Will the administration’s policy preferences be preserved and its agenda advanced, or will court decisions stymie important initiatives and restrict that agenda? This paper examines these questions with regard to the Obama administration’s record. The Obama era saw new levels of diversity in terms of judicial nominees and the courts did sometimes uphold key aspects of the Obama administration’s program to the chagrin of conservative opponents. Yet, with the benefit of two years hindsight, the evidence suggests that the Obama administration’s legacy with regard to both the central questions addressed in the paper was a diminished one. The administration’s capacity to reorient the federal bench was thwarted by the legislative branch, notably obstruction in Senate, with the consequences of that frustration highlighted by the rapid actions taken by the Trump administration and Senate Republicans in 2017–18. Furthermore, on balance, the decisions made by the federal judiciary on matters of significant concern to the Obama White House weakened rather than strengthened the administration’s legacy.</abstract>

A Legacy Diminished: President Obama and the Courts

<abstract xmlns="http://www.w3.org/1999/xhtml">The National Academy of Sciences (NAS), established in 1863, is the United States’ leading science and technology think-tank, with an active commitment to advising government. Over the last 150 years, the NAS has, both independently and in conjunction with the federal government, investigated and reported on various issues of importance, ranging from space exploration and biosecurity, to STEM education and immigration. Due to growing concerns about particular disciplines (and specifically their application in legal proceedings), one issue the NAS has reported on between 1992 and 2009 is forensic science. Specifically, the NAS has published six reports commenting on the status of forensic science evidence in the USA, namely DNA Technology in Forensic Science (1992), The Evaluation of Forensic DNA Evidence (1996), The Polygraph and Lie Detection (2003), Forensic Analysis: Weighing Bullet Lead Evidence (2004), Ballistic Imaging (2008), and Strengthening Forensic Science in the United States: A Path Forward (2009). The response of stakeholders (including from political, legal, and academic spheres) to these reports has varied, ranging from shifts in practice and full acknowledgement, to considerable struggles to effectuate systemic reform. Using the different experiences of two reports – Forensic Analysis: Weighing Bullet Lead Evidence (2004) and Strengthening Forensic Science in the United States: A Path Forward (2009) – as a vehicle, this article suggests how the NAS can strengthen the impact of its forensic science reporting, and how stakeholders can better harness the expertise of the NAS.</abstract>

A Template for Enhancing the Impact of the National Academy of Sciences’ Reporting on Forensic Science

<abstract xmlns="http://www.w3.org/1999/xhtml">Compliance with international law is commonly accepted as strengthening inter--state relationships and, therefore, consolidating inter-state politics. This article argues that, in certain circumstances, hostility to international law can be regarded as indicative of shifts in the balance of power that undermine the enforcement of injunctions of international law. These, it will be shown, need to be addressed through inter-state dialogue. To sustain the argument proposed, the article focuses, from an international relations perspective, on the resistance to the practice of prosecuting sitting Heads of State by the International Criminal Court (ICC). The prosecution of a sitting Head of State is considered in this article as the poster--child of liberal institutionalism. The track record of the ICC in this domain is worrying: out of 3 situations (Omar al Bashir in Sudan; Uhuru Kenyatta in Kenya; and Muammar Gaddafi in Libya) the Court was unable to finalize a single one. Following theoretical plexuses derived from the English School of international relations, and particularly Hedley Bull’s “Paradox of the Balance of Power”, the article draws attention to the case of Gaddafi in Libya and to the international debate on the potential prosecution of Bashar al Assad in Syria. This is done to show that the transition between the two is exemplificative of a paradoxical dynamic: international law is more efficient in situations of balance of power; but violations of international law are, in specific cases, necessary to rectify it. Ultimately, the article argues, more attention should be dedicated to the resistance to the prosecutions of sitting Heads of State to understand the implications that this might have for the balance of power, and in the construction of a truly pluralist international society based on inter-state dialogue.</abstract>

The International Criminal Court, Sitting Heads of State Prosecutions, and the Paradox of the Balance of Power

<abstract xmlns="http://www.w3.org/1999/xhtml">Responding to climate change presents significant challenges on both international and domestic fronts. The current U.S. federal government disclaims a connection between climate change, and human activity, and embraces an environmental program that includes withdrawal from the Paris Climate Change Agreement at international level and retrenchment from regulation domestically. This Article comments on the rollback of Obama-era environmental regulations now taking place at federal level and locates these policies in the context of the domestic polarization and partisanship that now characterizes U.S. politics. It notes that environmental regulation divides the Republican and Democratic Parties but that the response of individual party members may be more nuanced, particularly amongst younger voters. The Article comments on state level initiatives to counteract the effects of climate change that have gathered bipartisan support but are now subject to partisan actions by the federal government designed to limit their effectiveness. The Article concludes with the observation that as the combination of an aging demographic and alignment with a declining fossil fuel industry shrinks the GOP traditional constituency, it is to be hoped that far-sighted politicians from both parties will embrace credibility on this issue as a key component of enhancing their own as well as the planet’s survival.</abstract>

The Environment, A Bipartisan Issue?: Partisanship Polarization and Climate Change Policies in the United States

AHEAD OF PRINT

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Volume 5 (2016): Issue 1 (April 2016)

British Journal of American Legal Studies

 The British Journal of American Legal Studies is the premier American legal studies journal in Europe. This peer reviewed, cross-disciplinary journal is a bridge between American and European legal scholarship focused on American legal issues. The journal has a theoretical focus, but will occasionally publish articles with a doctrinal or empirical focus that cast light on important issue within the journal's remit. The journal highlights scholarship examining shared intellectual traditions between America, Britain and Europe. Authors whose work draws connections between American, British and European constitutional, political, historical, intellectual ideas and materials informing legal studies are particularly welcome to submit articles to the journal.　   Submissions/information for authors:  Submissions may be made through Scholastica and are typically but not exclusively between 10 - 15, 000 words excluding footnotes. The journal uses Bluebook referencing format.　  The journal does not have article processing charges (APCs) nor article submission charges.  Archiving  Sciendo archives the contents of this journal in Portico - digital long-term preservation service of scholarly books, journals and collections.  Plagiarism Policy  The editorial board is participating in a growing community of Similarity Check System's users in order to ensure that the content published is original and trustworthy. Similarity Check is a medium that allows for comprehensive manuscripts screening, aimed to eliminate plagiarism and provide a high standard and quality peer-review process.  Target Group   academics and practitioners in the field of constitutional law having relevance to the United States, including human rights, legal and political theory, socio-legal studies and legal history 