South African Constitutional Doctors with Low Public Support

Book review: The politics of principle: the first South African constitutional court, 1995-2005. By Theunis Roux. 2013. Cambridge: Cambridge University Press. Pages xvi, 433. Reviewed by Or Basso

Beyond the Horizons of the \u3ci\u3eHarvard\u3c/i\u3e Forewords

American constitutional thought is controlled by certain paradigms that limit the ability to think beyond them. A careful reading of the Harvard Law Review Forewords—the “tribal campfire” of American constitutional thinkers—is one way to detect these paradigms. Based on reading these Forewords since their inception in 1951 and until 2019, I track how the concept of judicial legitimacy has been understood over the years. My analysis shows that in recent decades an understanding of judicial legitimacy in terms of public support has risen to the status of a controlling paradigm. While this understanding is currently considered commonsensical, it stands in tension with an understanding of judicial legitimacy in terms of expertise that goes back to Alexander Hamilton and dominated the Forewords up until the 1960s. Rather than viewing the Supreme Court as requiring public support for its legitimacy, according to the Hamiltonian view, the Court requires “merely judgment.” Tracking the genealogy of judicial legitimacy in the Harvard Forewords also shows how the shift from Hamilton’s understanding of judicial legitimacy to the current understanding was connected to the invention of public opinion polling. This invention allowed for the first time in history to measure public support for the Court. Before this invention, with only elections as the accepted tool for measuring public support, understanding the Court’s legitimacy in terms of public support was impossible. With the rise of opinion polls as an authoritative democratic legitimator, the concept of judicial legitimacy changed as is reflected in the Harvard Forewords

The Two Countermajoritarian Difficulties

In recent years, the countermajoritarian difficulty has split into two. According to its traditional version, the difficulty arises when unaccountable Justices strike down statutes passed by electorally accountable branches of government. According to the newer, literal version, the difficulty arises when Justices strike down statutes that are supported by the majority according to public opinion polls. By explicating the difference between the two versions of the difficulty, I expose the deep influence of public opinion polls on American constitutional thought. For many years, scholars conflated the two difficulties under one banner and offered normative justifications for the Court’s countermajoritarian authority. In recent years, many constitutional theorists, oriented toward social science, attempt to dissolve the literal countermajoritarian difficulty by showing that the Court is not countering the majority will but following it. I further demonstrate that the distinction helps to explain four additional issues of constitutional theory. First, this distinction explains the connection between the countermajoritarian difficulty and the “passive virtues” technique that Alexander Bickel devised for the Court. Second, it exposes the importance of the distinction between cases that the media covers and non-visible cases. Third, it sheds new light on the basis of the Court’s power. Finally, this distinction is crucial for a better understanding of a puzzle that stands at the heart of the rise of judicial power worldwide

Analysis of supply contracts with commitments and flexibility

In this article we address an important class of supply contracts called the Rolling Horizon Flexibility (RHF) contracts. Under such a contract, at the beginning of the horizon a buyer has to commit requirements for components for each period into the future. Usually, a supplier provides limited flexibility to the buyer to adjust the current order and future commitments in a rolling horizon manner. We present a general model for a buyer's procurement decision under RHF contracts. We propose two heuristics and derive a lower bound. Numerically, we demonstrate the effectiveness of the heuristics for both stationary and non-stationary demands. We show that the heuristics are easy to compute, and hence, amenable to practical implementation. We also propose two measures for the order process that allow us to (a) evaluate the effectiveness of RHF contracts in restricting the variability in the orders, and (b) measure the accuracy of advance information vis-a-vis the actual orders. Numerically we demonstrate that the order process variability decreases significantly as flexibility decreases without a dramatic increase in expected costs. Our numerical studies provide several other managerial insights for the buyer; for example, we provide insights into how much flexibility is sufficient, the value of additional flexibility, the effect of flexibility on customer satisfaction (as measured by fill rate), etc. © 2008 Wiley Periodicals, Inc. Naval Research Logistics, 2008Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/60455/1/20300_ftp.pd

The Arendtian Dread: courts with power

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that the popular will could be harnessed to support those responsible for limiting it. More concretely, she was fearful of the American Supreme Court relying on popular support. This is the meaning behind her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but as unfit to power. I argue that Arendt’s characterization of authority as requiring “neither coercion nor persuasion” means that the Court’s source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court’s authority. In Arendt’s mind, such an understanding means that the Court has become the seat of power. The corruption of the Court’s authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow. Arendt would thus be extremely concerned by the continuing erosion in understanding of the American Supreme Court as an expert, and from the rise of the understanding that its source of legitimacy lies in public confidence

The World of Constitutionalism is Not Flat

In recent years, the emerging field of comparative constitutional law has been swept by a new approach with a scientific allure known as the Large-N approach. The methodology of this approach requires flattening the world of constitutional law by reducing the meaning of constitutional determinations into countable data. One of the difficulties in resisting this trend is that while many constitutional scholars have offered accounts that do not flatten the world of constitutional law, their methodology remains unarticulated and rarely discussed. Paul Kahn is one of the few scholars who offered an account of how to conduct non-doctrinal research of constitutional law. This Article aims to distil several principles of Kahn’s methodology, discuss its limitations, and demonstrate why it is superior to the Large-N approach. To achieve these goals, I chose to focus on three books on the German constitutional system that are based on dissertations written at Yale University, where Kahn teaches. Based on my discussion of these three books, I argue that Kahn’s methodology offers an approach which I dub the “Rich Picture” approach (or Rich-P). The Rich-P approach exposes that participants in a constitutional discourses understand constitutional materials, such as constitutional documents or judicial opinions, through a conceptual array that varies between legal orders. Without acknowledging the conceptual “eyeglasses” we wear when investigating constitutional determinations, measurements of the entire world of constitutionalism may lead to catchy soundbites and tweets, but to conclusions that are misleading at best