Leibowitz, David Seymour
(1998)
American constitutional communication: Appellate court opinions and the implications for "the judicial power of the United States".
PhD thesis, London School of Economics and Political Science.
Abstract
The replacement of traditional seriatim opinions with an "Opinion of the Court," offers what initially appears to be an interesting but seemingly trivial characteristic of American law. In fact, this departure from convention represents an exceptional shift in the behavioral actions and expectations of American appellate judges. This switch in the method of judicial communication is an exemplar for the belief that institutions, and the rules that regulate them, matter seriously. Failure to appreciate and insist upon "sincerity" as a distinctive judicial trait has impoverished historical and structural approaches to constitutional argument and has aided in the conflation of judges and legislators. Moreover, the initial demotion of sincerity as a cardinal value of American judicial power was an amendment of constitutional structure of rather dubious motive and utter lack of process. Anglo-American history reveals that judges performing their appellate functions consciously and consistently attended to a sincere, individual execution of their duty. Furthermore, an exploration of important Anglo-American jurisprudence reveals that sincerity is a presupposed though often neglected judicial virtue. This tripartite argument also includes a review of important constitutional theory and legal commentary regarding judicial communication. In the broadest sense, I endeavor to explain that the nature of law is inextricably related to its delivery and that the Constitution admits of a conversing, plurally-voiced dynamic of communication. These sorts of inquiries are true to American founding beliefs that a new science of politics can apply to old problems of governance. These arguments also highlight a guiding principle for any judiciary functioning in a constitutional democracy: public communication is critical for any consenting polity to discern the worth and import of the rule of law.
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