Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring and filling gaps in the judicial architecture, that practice is, in contrast to the practices in Noel Canning and Zivotofsky, rarely entrenched against ordinary legal change. Second, the authority of historical practice in high-profile separation-of-powers disputes generally rests on a theory of acquiescence by one branch in the other’s actions; the federal courts cases, in contrast, ignore acquiescence and instead ground practice’s authority in its longstanding observance. The use of historical practice in federal courts law rests on a theory of prescription — that is, past practice derives authority from its sheer past-ness. This essay explores the centrality of prescription in Burkean political theory and suggests that cases relying on past practices can contribute to the development of a distinctively Burkean theory of constitutional law. This theory suggests that past practice plays an important constitutive role, but as in the federal courts cases, that role is not entrenched against ordinary legal change. The fact that historical practice is not entrenched — and can be changed through democratic processes — helps to answer several key criticisms of relying on practice in constitutional adjudication

Cooperative Action for Improved Statutory Interpretation

During the past quarter century there has been a constant acceleration in legal periodical comment concerning statutory construction. Judges, practicing attorneys and law professors all have echoed basic dissatisfaction with the operation and application of the rules of statutory interpretation. Some would return to the safe old ground of literal interpretation; others would find relief in an expanded use of extrinsic aids; all find the process in a state of confusion and disintegration

Configuration(s) of unpaid caregiving within current legal discourse in and around the family.

© Queen's University of Belfast: School of Law.Using a feminist critique, this article explores the sliding scale of value attributed by law to unpaid caregiving in the (heterosexual) family context. Whereas in private family law, recent decisions have radically changed the direction of this discourse and placed a very high value on such a contribution to family life where it occurs in the married context, the same kind of caregiving activity is attributed afar diminished value within cohabitation law whilst, when sited within statedependent single parenthood, its value becomes at best nonexistent or even negative, with paid work assumed to be the carer's ultimate goal. This article considers some issues arising from this evolving legal framework from the perspective of gender relations. What are the implications from an equality-seeking perspective only valuing caregiving highly in dependent patriarchalr elationships,p articularlyi n a society that continues to retreat from the welfare state? Might greater participation of men in unpaid caregiving remove obstacles inherent in the gendered nature of the debate and permit a more positive reconfiguration of the discourse surrounding it? What effect might the extension of the law of financial relief to civil partners have on the discourse from an equality perspective

Análisis jurisprudencial del régimen de la guarda y custodia

El presente trabajo tiene como objeto el análisis jurisprudencial de la guarda y custodia en situaciones de crisis de la convivencia familiar. En un primer apartado estableceré el análisis jurisprudencial del régimen de guarda y custodia atribuida a uno de los progenitores, también llamada, exclusiva y posteriormente el de la custodia compartida. Es en la Ley 15/2005, de 8 de julio, por la que se modifican el Código Civil y la Ley de Enjuiciamiento Civil en materia de separación y divorcio, en la que se introduce la institución de la custodia compartida, pues hasta ese momento no estaba prevista legalmente esta figura. Para llevar a cabo este estudio, procederé a analizar las resoluciones de la doctrina jurisprudencial sentada por el Tribunal Supremo, así como la llamada “jurisprudencia menor” de las Audiencias Provinciales.This essay has a clear aim the jurisprudential analysis of guard and custody in situations of crisis in familiar cohabitation. In a first section I will establish the jurisprudential analysis of the custody and custody regime attributed to one of the parents, also called, exclusively and subsequently the shared custody. It is in Law 15/2005, of July 8, that the Civil Code and the Law of Civil Procedure in matters of separation and divorce are modified, in which the institution of shared custody is introduced, because until that moment this figure was not legally provided. To carry out this study, I will proceed to analyze the resolutions of the jurisprudential doctrine established by the Supreme Court, as well as the so-called "minor jurisprudence" of the Provincial Hearings

“Not Women’s Work”: Gendered Labor, Political Subjectivity and Motherhood

This article challenges broadly applied beliefs about the gendered nature of informality and the marginalization of single mothers to argue that many such women in Ayacucho, Peru routinely sought out formal-sector jobs and used these to exert authority over certain local processes of development. I argue that this situation, influenced in part by the male-dominated nature of the lucrative but completely informal coca economy, may also reflect Andean ideologies of maternal authority and the freedom afforded to single, rather than married, women. This article draws on over sixteen months of fieldwork in rural Ayacucho, during which time I observed women’s efforts to diversify and reconfigure their households and analyzed their income strategies in relation to political involvement and kinship networks. As I describe, my interlocutors were primarily landless, and sold food from home, engaged in hacienda ‘invasions’, and took available jobs with NGOs and municipalities. These jobs were often short-term, part-time, and low paying, and development and municipal projects sought women specifically for such positions, believing men were unlikely to take them. Countering the global pattern of women’s relegation to the informal sector, however, as well as the notion that single women are inevitably disproportionately marginalized, female heads-of-household in the Huanta region regularly sought formal, even government-sponsored jobs and used such positions to improve their own situations and direct community change