On the stability constraints and oscillatory behavior of coupled systems

Stability constraints for two general forms of coupled systems of second order nonlinear differential equation

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010). The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes. Comparing law to the practice of common courtesy, the book explains how our courts not only survive under such suspicions of hypocrisy, but actually depend on them. Law, like courtesy, furnishes a means of getting along: it frames disputes in collectively acceptable ways, and it is a habitual practice, drummed into the minds of citizens by popular culture and formal institutions. The rule of law, understood as the rules of etiquette, is neither particularly fair nor free of paradoxical tensions, but it endures. Although pervasive public skepticism raises fears of judicial crisis and institutional collapse, such skepticism is also an expression of how our legal system ordinarily functions

The Limits of Debate or What We Talk About When We Talk About Gender Imbalance on the Bench

Article published in the Michigan State Law Review

Legal Realism, Common Courtesy, and Hypocrisy

In the United States, courts are publicly defined by their distance from politics. Politics is said to be a matter of interest, competition, and compromise. Law, by contrast, is said to be a matter of principle and impartial reason. This distinction between courts and politics, though common, is also commonly doubted - and this raises difficult questions. How can the courts at once be in politics yet not be of politics? If the judiciary is mired in politics, how can one be sure that all the talk of law is not just mummery designed to disguise the pursuit of partisan interests? In one sense, an ambivalent public understanding of the courts and suspicions of judicial hypocrisy pose a threat to judicial and democratic legitimacy. Yet, in another sense, public ambivalence and suspected hypocrisy may actually open up space for the exercise of legal power. I illustrate and critique the enabling capacities of ambivalence and hypocrisy by drawing an analogy to common courtesy

Good Manners, Gay Rights and the Law

In this paper, I argue that the expansion of LGBT rights requires engagement with the common practices of courtesy that confer and reinforce social standing. In order to understand what this engagement with good manners might look like, I outline the basic features of common courtesy and illustrate how courtesy depends on a mix of utility, habit, and pleasure. I argue that if the practice of courtesy is to be re-appropriated, then all three of the factors that underwrite courtesy must be addressed. I also consider the general possibilities for re-configuring courtesy. And, in this vein, I suggest that the law may provide an important means by which the re-appropriation of common courtesy can occur

Open Secret: Why the Supreme Court has Nothing to Fear From the Internet

The United States Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that the internet age of fluid information and openness has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of political preference rather than according to legal principle and impartial reason. Yet this political understanding of the Court cannot be revealed by greater transparency because this understanding is already broadly held and co-exists with the popular view that the Court is an impartial arbiter. The notion that the justices are influenced by politics is, in short, an open secret. Rather than wondering how judicial legitimacy might survive in an era when information continuously floods into the public sphere, I argue that the better question is how judicial legitimacy can be maintained in the first place when the judiciary is widely understood to be partisan and impartial at the same time

Open Secret: Why the Supreme Court Has Nothing To Fear From the Internet

The Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that our digital age of fluid information has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of political preference rather than according to legal principle and impartial reason. Yet, this political understanding of the Court cannot be revealed by greater transparency because this understanding is already broadly held and co-exists with the popular view that the Court is an impartial arbiter. The notion that the justices are influenced by politics is, in short, an open secret. Rather than wondering how judicial legitimacy might survive in an era when information continuously floods into the public sphere, I argue that the better question is how judicial legitimacy can be maintained in the first place when the judiciary is widely understood to be partisan and impartial at the same time

Open Secret: Why the Supreme Court Has Nothing To Fear From the Internet

The Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that our digital age of fluid information has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of political preference rather than according to legal principle and impartial reason. Yet, this political understanding of the Court cannot be revealed by greater transparency because this understanding is already broadly held and co-exists with the popular view that the Court is an impartial arbiter. The notion that the justices are influenced by politics is, in short, an open secret. Rather than wondering how judicial legitimacy might survive in an era when information continuously floods into the public sphere, I argue that the better question is how judicial legitimacy can be maintained in the first place when the judiciary is widely understood to be partisan and impartial at the same time

Efficient, Fair, and Incomprehensible: How the State \u27Sells\u27 Its Judiciary

Sociolegal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply-side” perspective. Focusing on the state’s efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state’s services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state actors also invest significant energy in claiming that the local courts are incomprehensible. Thus, in its efforts to introduce and advance centralized courts, the state argues not only that it offers the best version of what the citizenry wants, but also that it is impossible to conceive that people would want something other than what the state offers. We illustrate our argument and explain its significance by examining judicial reform in New York, where there has been a decades-long effort to displace local justice systems

Managing Radical Disputes: Public Reason, the American Dream, and the Case of Same-Sex Marriage

This paper proposes that ambiguous arguments play a crucial role in the management of radical disputes in democratic deliberation. Lofty though it might be, public reason is an impoverished ideal, and its celebrated role in democratic deliberation is vastly overrated, particularly among liberal theorists. In the courts of law and in the larger world, radical disputes unfold as messy, incomplete, ambiguous arguments are proposed by parties. This does not mean that all communication between parties must break down because parties do not abide by the rules of argumentation and evidentiary reasoning. It only implies that the language of ambiguity offers possibilities for democratic deliberation that are different from those presented in the discourse on public reason. Ordinary people have strong opinions but their arguments are, more often than not, incompletely theorized - a fact that by no means indicates that such arguments are failures. We illustrate our argument by examining the ambiguous, fragmented use of American Dream talk in the debate over same-sex marriage