This chapter considers the nature of constitutional “law” in the Supreme Court. In pursuing that inquiry, the chapter begins with the premise that the Constitution is law not because the Founding generation adopted it but because relevant constituencies in the United States today accept it as authoritative. Moreover, because the Constitution does not include all of the rules necessary for its own interpretation, many of the norms that mark the limits of permissible constitutional interpretation, including the doctrine of stare decisis, are similarly grounded in shared understandings and accepted practices among the justices and other officials, not written rules laid down by prior generations. The acceptance-grounded law that applies to the justices is enforceable through extra-judicial mechanisms that could potentially include defiance of Court decisions if they were widely perceived as overstepping the justices’ lawful authority. But we should recognize that the “law” that constrains the justices is different from more ordinary law. In a normative vein, this chapter describes adaptive judicial interpretations of a Constitution that was mostly written in the eighteenth century as a functional necessity. But it presents a more troubled assessment of developments in the current politically charged and divided era.

This chapter considers how the paradigm of the imperial judge, discussed in Chapter 3, was challenged by the political unrest and legitimacy crises of the Severan period. It does so through a close analysis of rescripts attributed to the child emperor Severus Alexander. Alexander’s rescripts exhibit two unusual rhetorical tendencies. First, several of them predate Alexander’s reign and are in fact relabeled rescripts of his disgraced predecessor Elagabalus; this relabeling shows that the link between imperial authorship and legitimacy had become more tenuous in the late Severan period. Second, rescripts of Alexander are unusually likely to portray the emperor as following prior imperial precedent and especially those precedents of his Severan forebears. I argue that both maneuvers can be thought of as a response to the problems posed by child rule; while Alexander’s own judgment might not be legitimate, his rescripts paint him as a caretaker for a dynastic legal order that was.

This final chapter turns to the other basic question that MacCormick asked himself, again exploring it for over four decades: is reason practical, and if so how? MacCormick engaged in this question in the form of a life-long dialogue with his Enlightenment predecessors, and especially Stair, Hume, Smith, and Kant. This chapter tracks this dialogue, while also keeping in mind the contemporary interlocutors of MacCormick’s theory of practical reason, which included not only the dominant voices in Anglo–American jurisprudence, such as Hart and Dworkin, but also philosophers in the European Continent, such as Perelman and Alexy. The first part of the chapter focuses on what may be called MacCormick’s meta-ethics, showing how MacCormick adopted perspectivalism about value. The second shows how, particularly in his theory of legal reasoning, MacCormick discusses the importance of constructing an inter-subjective space (via universalisation) and how he explores the complexity of deliberation as well as the defeasibility of decision within that space. Throughout, the chapter reads MacCormick’s account of the limited practicality of reason as a matter of character.

This chapter describes the traditional understanding of the nature of lawmaking by appellate courts in America. Often labeled as formalism, this conception of appellate court lawmaking is understood as being largely objective, highly logical, and fixed in nature. From this perspective, appellate judges were thought, while resolving specific disputes, to be also striving to develop and to refine the existing common law in a given jurisdiction so that it more and more came, over time, to accurately reflect a presumed ideal version of legal regulation. This activity was thought to be very similar in nature to the work of natural sciences when they seek to reconcile specific experimental results with current understandings and thereby move a field of science ever closer to an objectively correct account of the natural world. Accordingly, the ideal version of legal doctrine toward which formalist common law lawmaking aspired was commonly known as the natural law.

This chapter examines ways in which longstanding features of the legal system serve to counteract the forces outlined in Chapters 2 and 3 and thereby minimize the influence of improper factors on judicial behavior. It considers the adversarial process, the doctrine of precedent (or stare decisis), and the practice of justifying decisions via written opinions, and examines the ways in which the nature of each – and thus its effectiveness in channeling judges – has decreased. It further explores changes in the practice of law and in the culture more generally, including automation, that have altered the manner and depth in which lawyers and judges engage with the law.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

This chapter examines the unparalleled influence that the Court’s decisions have had on the Commission’s codification and progressive development of areas of the law under its consideration. It illustrates not only the great extent to which many of the Commission’s propositions have borrowed their authority from the pronouncements of the Court, but also the significant impact of the latter on the Commission’s choices concerning terminology and programme of work. The chapter further demonstrates the Commission’s conscious efforts to support the Court’s cause more broadly, including by encouraging the expansion of the Court’s jurisdiction and by promoting the doctrine of the sources of international law enshrined in its Statute.

In this chapter, Eric De Brabandere zeroes in on the settlement of disputes in the context of investment arbitration. This chapter accepts that the case law of the current investor-State dispute settlement system is inconsistent and unpredictable and requires reform. However, this chapter claims that the problems associated with the dispute settlement system for investment arbitration cannot be isolated from broader questions on the coherence of general international law, the determinacy of legal norms, and the role of arbitral tribunals in the interpretation of these norms. The chapter argues that coherence is a matter of degrees and that a ‘middle ground’ might be to consider that international investment law forms part of international law, which is a coherent legal system from the perspective of the sources or the secondary norms of international law. Consistency, on the other hand, is not completely achievable in the current investment landscape, given its lack of uniformity in terms of substantive law and ad hoc method of dispute settlement. Consistency must be sought through different options, such as redrafting investment treaties to ensure better balance and predictability of outcomes.

Chinese courts began to issue anti-suit injunctions (ASIs) in 2020 against litigants in foreign courts that had filed lawsuits to obtain a FRAND rate setting. Although these ASIs are a legal “transplant” from common law countries, they may also be viewed as “false friends” with significant differences from the jurisdictions from which they were imported. Several distinct vectors stand out: (a) China’s ASI practice and Chinese industrial policies are closely integrated into China’s domestic efforts to become an innovative power and standard essential patent (SEP) litigation norm setter; (b) China’s ASI efforts are part of a continuum of decades-long efforts to exert greater international influence, including in “judicial sovereignty” and global FRAND rate setting; and (c) the lack of transparency around China’s ASI practices, including the small and incomplete cohort of published cases, an apparent slow-down in recent ASI decisions, and Chinese traditions of experimentation in intellectual property (IP) legislation and practice, make it difficult at this time to determine how China’s ASI regime will further evolve into a system that is more compatible with other countries. This chapter more generally contributes to discussions around the appropriability of IP-related legal transplants into China by proposing that the differences between Chinese practices and practices in foreign countries may often be more significant than surface similarities.

Between the no-fault divorce revolution and various court rulings classifying sexual behavior between two adults as a private, intimate matter, some scholars have noted a shift away from traditional morality around sex in conjugal, cohabiting, and dating relationships in family law. The act of sex in a romantic relationship is often perceived as one’s complete liberty without bounds. Many underrate the legal consequences attached to their sexual behavior. However, sex is still the defining consideration that creates legal recognition of a romantic relationship between two people. It creates legal duties to each other and any minor involved in the partnership, irrespective of biological ties, in a relational parentage era. Past and recent court rulings, including rulings from nonmarital, intimate partner violence, and parentage cases, are provided as examples to recount the legal meaning of the act of sex.

This Chapter first explains what the ECtHR regards as the object of review in cases where an alleged violation of the Convention is caused by legislation: is this the legislation as such (which would invite general and more abstract review), or is it the individual decision applying this legislation (which would invite individualised and more concrete review), or perhaps both? The chapter then turns to discussing how the Court has tried to reconcile its task of offering individual justice and general constitutional interpretations. Specific attention is paid in this regard to the role of precedent-based reasoning in the Court’s case law and to case-based review, incrementalism and the development of general principles. Finally, the legal effect of these general principles is discussed (so-called ’res interpretata’ or force of interpretation), in contrast to the application thereof to the facts of the individual case.

This chapter is meant to serve as an introduction to the book, particularly to that part of its audience that is unaccustomed to the history and sources of Qatari contract law, as well as the institutions and forces that shape and develop it.

Should acts that are somewhat right and somewhat wrong be permitted or prohibited by the law? Five theories are presented and discussed. Each is evaluated with respect to how well it meets five desiderata. The first holds that a plausible theory should be decisive in the sense that it must always generate a practical ought. The court cannot refrain from ruling on a case, every case brought in front of the court must be resolved. The second desideratum is that the court should not be permitted to issue a ruling it knows to be incorrect. The third is an addendum to the second: a ruling based on a sincere but false belief is not acceptable for the same reason as a sincere but incorrect ruling on the soccer field is. The fourth desideratum is that a ruling must be predictable (after a precedent has been established) for agents with access to all relevant facts. Finally, the fifth desideratum is Aristotle’s observation that judges (and everyone else) should treat like cases alike. I argue that the only theory that meets all five desiderata is a view I call precedentism. According to this theory, doctrinally indeterminate oughts are indeed indeterminate, but precedents can generate new determinate practical oughts.

Chapter 7 addresses the following question: How can reflexivity be promoted in the collective context of investor-state dispute settlement, so as to help bridge individually held views by arbitrators that often come into competition or conflict with one another? The response that this chapter offers is that collective reflexivity can be promoted by acknowledging the presence of moral responsibility in arbitrators and by arbitrators committing to five distinct judicial virtues, namely: faith, humility, acquiescence, integrity, and candour. Judicial virtues are habits and mental dispositions, not an equation for the courtroom. They are thus meant as a framework offering guidelines and a roadmap to develop better deliberative practices. The chapter analyses the content of each virtue and assesses observable behaviour in investor-state dispute settlement under each of them.