Sherry discusses how judges have exercised their independence. She provides a brief historical overview of judges using their independence to implement their own view of justice

Arbman Karlsson, Kristin

Buddenbaum Glans, Simon

Law and Contemporary Problems : a Quarterly Published by the Duke University, School of Law

English

The current standards for design of steel beams are divided into four classes based on the slenderness of cross-sectional parts. Depending on the section class a beams load capacity is either determined by a plastic, elastic or a reduced elastic model. The division between cross-sections calculated by a plastic and an elastic model is today done in a very harsh way with no smooth transition. This leads to a large difference in the calculated resistance for the sections located near the class limits. Elasto-plastic sections are in the current situation calculated as purely elastic and their large plastic reserve is not considered in the current standards. The ambition of this study was to develop an appropriate interpolation model for elasto-plastic sections which gives a finer transition between the plastic and elastic region. To verify the proposed interpolation model were a large range of beams with varying slenderness modeled in the FEM program Abaqus. The beams have been restricted to include only simply supported HSQ-beams. The results obtained were found to indicate that Eurocode generally seem to overestimate the capacity of plastic cross-sections in section class 1 and 2, in some cases by up to 10%. With this insight focus ruled over from the interpolation model to instead look closer into the accuracy of the limit values in Eurocode. Overall, the results points to that Eurocode overestimate the bearing capacity the closer the elastic area you get. In the elastic area the load capacity instead shifts into being underestimated, which in turn shows the lack of an interpolation model. There are a number of possible reasons why Eurocode seems to overestimate the bearing capacity in some cases. The largest impact on the results seems to be the initial deflection of the internal parts. It is possible that the introduced deflection in Eurocode is too far from the allowable manufacturing tolerances that can actually occur in reality. Other factors such as choice of buckling lengths when the slenderness is determined and the effect of residual stresses may also affect the ultimate load bearing capacity. Too big conclusions should not be made by the results of this study given the limitations made, but the results nevertheless indicate that there are deficiencies in the classification of cross-sections in Eurocode and that further research should be carried out

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Bending resistance of HSQ-beams : An interpolation model for cross-section classification

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Suzanna Sherry

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Independent Judges and Independent Justice

Digitala Vetenskapliga Arkivet - Academic Archive On-line

Sherry, Suzanna

Duke Law Scholarship Repository

SHERRY.FMT 03/24/99 1:09 AMINDEPENDENT JUDGES ANDINDEPENDENT JUSTICESUZANNA SHERRY*IINTRODUCTIONProfessor Currie’s article1 discusses historical attempts to limit judicial in-dependence.  I consider the converse: how judges have exercised their inde-pendence.  This essay provides a brief historical overview of judges using theirindependence to implement their own view of justice, often contrary to bothpopular sentiment and legislative will.IITHE ENGLISH BACKGROUNDAmerican judges come from a long tradition of judicial independence, evenwhen the formal British regime curtailed that independence.  For example,English judges had no independence before 1701—and not much after thatdate.  There was no practice of judicial review; judges did not strike down leg-islative enactments.  The classic description of legislative omnipotence was that“[a]n act of parliament can do no wrong, although it may do several things thatlook pretty odd.”2Nevertheless, even against this background of judicial dependence, therewere examples of judges refusing to bend to parliamentary will.  In 1649, Par-liament impeached, convicted, and executed Charles I.  Although there were noprecedents and no procedures for such an action—and history has subsequentlyjudged it as lawless—Parliament tried to make the proceedings conform to atleast the forms of justice.  They sought out the highest judges in England topreside over the trial: the Lord Chief Justice of England, the Lord Chief Justiceof the Common Pleas, and the Lord Chief Baron of the Exchequer.  All threerefused, and Parliament eventually chose an obscure local jurist, who no doubtcontributed to the proceeding’s historical disrepute.3                                                          Copyright © 1998 by Law and Contemporary ProblemsThis essay is also available at http://www.law.duke.edu/journals/61LCPSherry.* Earl R. Larson Professor of Civil Rights and Civil Liberties Law, University of Minnesota.1. See David P. Currie, Separating Judicial Power, 61 LAW & CONTEMP. PROBS. 7 (Summer1998).2. City of London v. Wood, 12 Mod. Rep. 669, 678 (K.B. 1701).3. For a brief but informative review of the impeachment of Charles I, see Louis J. Sirico, Jr., TheTrial of Charles I: A Sesquitricentennial Reflection, 16 CONST. COMMENTARY (forthcoming 1999).SHERRY.FMT 03/24/99  1:09 AM16 LAW AND CONTEMPORARY PROBLEMS [Vol.  61: No.  3Sir Edward Coke, the father of American judicial review, provides anotherexample of English judicial independence.  He wrote that “when an Act ofParliament is against common right and reason, or repugnant, or impossible tobe performed, the common law will control it, and adjudge such Act to bevoid.”4  Americans, for whom Parliament was a source of frustration, much pre-ferred Coke’s view to Blackstone’s parliamentary supremacy.IIIA BRIEF OVERVIEW OF AMERICAN JUDICIAL INDEPENDENCEAmericans thus had models for both appropriate judicial independence andlegislative (and executive) tyranny; when they declared independence, theywere determined to have independent judges.  As the individual states enactedconstitutions during the 1770s and 1780s, each provided for varying levels of ju-dicial independence, while also enacting various devices for curbing runawayjudges.  All American judges, however, had more independence than their co-lonial predecessors.The new state judges immediately began exercising their independence.Even before the United States Constitution was drafted, state judges engagedin judicial review by invalidating legislation and overturning convictions.  Theydid so, moreover, not only on the basis of a conflict with a written constitution,but also on the basis of natural law.  Between 1780 and 1787, at least five courtsin five different states protected unwritten rights—property rights and the rightto trial by jury—from legislative abrogation, despite the absence of any appli-cable constitutional provision.5As the nation matured, the new federal courts joined state courts in usingunwritten natural law to invalidate statutes.  Courts also began justifying andexplaining their actions more carefully; when judges did so, they used the lan-guage of natural rights.  Court opinions spoke of such limits on legislation as“natural rights,” “inalienable rights,” “inherent rights,” “fundamental princi-ples of civilized society,” and the “immutable principles of justice.”6  They alsobroadened the definition of unwritten rights, protecting not only propertyrights and the right to jury trial, but also the right of representation and rightsagainst retroactive laws or laws granting special privileges.The federal courts invoked natural or unwritten rights until about 1820.State courts continued to do so for a much longer period, well into the 1830sand sometimes later.  A few representative examples give the flavor of the judi-cial use of natural law in the late eighteenth and early nineteenth centuries.                                                          4. Dr. Bonham’s Case, 8 Co. Rep. 113b, 118a, 77 Eng. Rep. 646, 652 (1610).  For an interestingdiscussion of what this statement meant to Americans, see John V. Orth, Did Sir Edward Coke MeanWhat He Said?, 16 CONST. COMMENTARY (forthcoming 1999).5. For a detailed discussion of the five cases, see Suzanna Sherry, The Founders’ Unwritten Con-stitution, 54 U. CHI. L. REV. 1127, 1134-42 (1987).6. Cases using these and other formulations are discussed in id.; Suzanna Sherry, Natural Law inthe States, 61 U. CIN. L. REV. 171 (1992); Suzanna Sherry, The Ninth Amendment: Righting an Unwrit-ten Constitution, 64 CHI.-KENT L. REV. 1001 (1988).SHERRY.FMT 03/24/99  1:09 AMPage 15: Summer 1998] INDEPENDENT JUDGES 17A South Carolina court held in 1794 that “trial by jury is a common lawright; not the creature of the constitution, but originating in time immemorial;it is the inheritance of every individual citizen, the title to which commencedlong before the political existence of this society.”7Judge Spencer Roane of Virginia agreed that some rights predated the con-stitution.  Judge Roane, of course, is most famous for his dispute with JohnMarshall about the power of Congress to establish a national bank.8  But in1809, in the course of upholding a retroactive law because it did not work anyinjustice, Roane indicated that he would strike down an unjust law even if theconstitution did not specifically prohibit the law.  At oral argument in the caseof Currie’s Administrator v. Mutual Assurance Society,9 counsel had argued forstrict limits on the power of judicial review:  “No doubt every governmentought to keep in mind the great principles of justice and moral right, but noauthority is expressly given to the judiciary by the Constitution of Virginia, todeclare a law void as being morally wrong.”10  Roane vehemently disagreed,writing:It was argued by a respectable member of the bar, that the legislature had a right topass any law, however just, or unjust, reasonable, or unreasonable.  This is a positionwhich even the courtly Judge Blackstone was scarcely hardy enough to contend for,under the doctrine of the boasted omnipotence of parliament.  What is this, but to layprostrate, at the footstool of the legislature, all our rights of person and property, andabandon those great objects, for the protection of which, alone, all free governmentshave been instituted?11One could not ask for a clearer endorsement of both broad judicial review andthe principle that unjust or unreasonable legislation should not be enforced byjudges.New York was another state in which judges turned to natural law in theabsence of constitutional limits on the legislature.  In 1816, Chancellor JamesKent ordered the state to pay compensation for a taking of private property,even though the New York constitution did not require it and the federal Con-stitution did not apply to the states.  Kent reasoned that depriving an owner ofproperty without compensation was “unjust, and contrary to the first principlesof government.”12  Almost two decades later, another New York court empha-sized that the taking of private property for a private rather than a public pur-pose—even if compensation was paid—was “in violation of natural right, and ifit is not in violation of the letter of the constitution, it is of its spirit, and cannotbe supported.”13                                                          7. Zylstra v. Corp. of Charleston, 1 S.C.L. (1 Bay) 382, 395 (1794).8. See JOHN MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND (Gerald Gunther ed., 1969).9. 14 Va. (4 Hen. & M.) 315 (1809).10. Id. at 341.11. Id. at 346-47.12. Gardner v. Village of Newburgh, 2 Johns Ch. 162, 168 (N.Y. Ch. 1816).13. In re Albany Street, 11 Wend. 149, 151 (N.Y. Sup. Ct. 1834).SHERRY.FMT 03/24/99  1:09 AM18 LAW AND CONTEMPORARY PROBLEMS [Vol.  61: No.  3The United States Supreme Court also relied on natural law rhetoric duringthis period.  Opinions from Justice Chase’s in Calder v. Bull14 to Justice Story’sin Terrett v. Taylor,15 for example, are full of references to such ideals as the“vital principles in our free republican governments,” “the great first principlesof the social compact,” “the maxims of eternal justice,” and the “principles ofnatural justice.”16From the 1780s until at least the 1830s, then, judges exercised their inde-pendence to invalidate laws that conflicted with natural justice.  From the 1830sto the eve of the Civil War, judges in Northern states used judicial independ-ence to strike a blow against slavery.  In a country that was half slave and halffree, courts necessarily faced the issue arising when slaves were taken into afree state:  Did the slave thereby become free?  Courts in Massachusetts, Con-necticut, and New York held that such persons did become free, even if theowners were in the state only temporarily.17  Indeed, in Lemmon v. People,18 theNew York Supreme Court freed a slave who was in the state only to changeships on the passage from Virginia to Texas; such a stopover was necessary be-cause there was no direct sea passage between the two slave states.  In theseand similar cases, the courts reasoned that because slavery was contrary tonatural law, it could only exist where authorized by positive law.19  Ironically,these judges behaved more courageously than the life-tenured judges of theUnited States Supreme Court:  When the same question came before thatCourt, the Justices not only ducked it but reached several other questions thatmade matters worse.20State judges again strode into the fray after the Civil War.  In 1868, twomonths before the Fourteenth Amendment was ratified, the Iowa SupremeCourt invalidated racially segregated schools as a violation of both the Iowaconstitution and the “spirit of our laws.”21  In 1881, the Kansas Supreme Courtfollowed suit, striking down segregated schools in that state.22  Tragically, theKansas Supreme Court changed its mind two decades later23—the TopekaBoard of Education, of course, was the lead defendant in Brown v. Board ofEducation.24In the 1950s and 1960s, federal court judges used their own judicial inde-pendence to ignore popular opposition and implement justice.  Courageous                                                          14. 3 U.S. (3 Dall.) 386, 387-88 (1798).15. 13 U.S. (9 Cranch) 43, 50-52 (1815).16. For other Supreme Court cases using natural law language, see Sherry, supra note 5.17. See, e.g., Lemmon v. People, 20 N.Y. 562 (1860); Jackson v. Bulloch, 12 Conn. 38 (1837);Commonwealth v. Aves, 35 Mass. (18 Pick.) 193 (1836).18. 20 N.Y. 562 (1860).19. For a thorough discussion of these cases and their English precedents, see PAUL FINKELMAN,AN IMPERFECT UNION: SLAVERY, FEDERALISM, AND COMITY (1981).20. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).21. Clark v. Board of Dirs., 24 Iowa 266, 276 (1868).22. Board of Educ. v. Tinnon, 26 Kan. 1 (1881).23. Reynolds v. Board of Educ., 72 P. 274 (Kan. 1903).24. 347 U.S. 483 (1954).SHERRY.FMT 03/24/99  1:09 AMPage 15: Summer 1998] INDEPENDENT JUDGES 19federal judges such as Frank Johnson and Skelly Wright, John Minor Wisdomand Elbert Tuttle, and Richard Rives and John Godbold integrated an obsti-nate and defiant South in the years after Brown.  These judges used the inde-pendence bestowed by Article III to compel integration against both popularand governmental resistance, even taking over state institutions when neces-sary.25IVCONCLUSIONWhat can we learn from these widely disparate examples of independentjudges, stretching over almost two centuries?  First, despite the unpopularity oftheir decisions, and despite the attacks on the judiciary catalogued by ProfessorCurrie, these judges by and large suffered no official repercussions.  There werecalls for impeachment, but no judges were removed.  There were calls to limitjurisdiction, but jurisdiction remained unchanged.The more important lesson, however, is to remember that all of the judges Ihave mentioned—from those who refused to sit in judgment on Charles I to thefederal judges who enforced the Equal Protection Clause in the mid-twentiethcentury—have been vindicated by history.  We now applaud their rulings, how-ever controversial they were at the time they were rendered.  And we condemnsome judges who lacked the courage to exercise their independence.  We donot praise the majority in Plessy v. Ferguson,26 which upheld segregation in1896, or the majority in Korematsu v. United States,27 which affirmed the in-ternment of Japanese-Americans in 1944.  We admire instead the Justices whodissented in each of those cases.So when we try to achieve a balance between independence and account-ability, we should be careful not to be blinded by present passions.  What wemight today think is excessive judicial activism and insufficient accountabilitymight in a hundred years be viewed as a shining example of judicial courage.                                                          25. For a gripping account of these judges and their accomplishments, see JACK BASS, UNLIKELYHEROES (1981).26. 163 U.S. 537 (1896).27. 323 U.S. 214 (1944).

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Independent Judges and Independent Justice

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