Marcus Perrin Knowlton, Late Chief Justice Of The Supreme Judicial Court Of Massachusetts, Opinion in Dora Green v. Abraham Sklar, June 20, 1905, Lexis Academic
The first question is whether, in applying the statute, the judge may consider the costs of the different cases together as one aggregate, and reduce them to an amount "not less than the [*364] ordinary witness fees and other costs recoverable in one of the cases"; or, whether he is to consider the costs of each case by itself, and make the reduction in each case separately. If he is limited to the latter mode, he cannot extinguish or disallow the costs altogether in any case, for the word "reduce," in its ordinary signification, does not mean to cancel, destroyor bring to naught, but to diminish, lower or bring to an inferior state. We think HN2Go to this Headnote in the case.the words above quoted indicate that, in reducing the costs, the amount in all the cases together is to be considered and reduced. This makes it possible for the judge, in his discretion, to reduce them in such a way as to leave nothing in some of the cases, providing he leaves in the aggregate an amount not [***3] less than the largest sum recoverable in any of the cases.
Violation: the plan is extra topical – it specifies the courts rule on the groups that the invasion of Iraq is a violation of customary international law. This is not a reduction.
Limits – The plan could specify any grounds, killing neg preparation and clash.
Ground – The affirmative claims advantages solely off of the grounds the court rules on – this is not a reduction in military presence.
T is a voting issue for fairness and education.
1.The move towards common international law is gradual and sustainable in the status quo
Mark C. Rahdert, Prof. of Law @ Temple University, 2007 [56 Am. U.L. Rev. 553, “Comparative Constitutional Advocacy,” lexis]
The American tradition of legal and constitutional isolation is slowly breaking down and will continue to do so. There are several factors contributing to this development, including the increasing globalization of American law, the interaction and exchange among judicial officials of different nations, the international convergence of constitutional norms, and the increasing sophistication and progressivism of foreign constitutional courts. A. Globalization and its Constitutional Implications. Globalization of the law is eroding American constitutional isolation. n273 Globalization of American law has advanced along many fronts, most notably in areas related to trade and finance, but also in environmental law, intellectual property, and other important domains. n274 Where globalization has occurred, it has introduced into the American judicial process a new need for attention to comparative legal analysis. n275 While most of these developments do not have direct constitutional implications, they carry overtones that can indirectly introduce a comparative element into American constitutional discourse. For example, the United States has agreed to abide by and enforce a variety of international legal principles that constrain domestic discretion both to adopt restrictive policies toward foreign trade and to provide preferential treatment for domestic competitors in global markets. n276 Two prominent examples are U.S. participation in the [*603] World Trade Organization and the North American Free Trade Agreement. Such agreements introduce comparative elements into U.S. judicial decisionmaking. They create the possibility of conflict between their terms and domestic laws, contracts, or other legal arrangements. When that occurs, U.S. courts will be called upon to interpret the language of the multinational agreements, determine the extent (if any) of their legally cognizable conflict with domestic laws or regulations, and decide how the conflict will be resolved. n277 Conflict between international trade arrangements and domestic law has constitutional overtones because, under Article VI's Supremacy Clause, such international free trade obligations become part of the "supreme law of the land" in the United States, binding upon government and private citizens alike. n278 Under the constitutional doctrine of preemption, the international trade obligations adopted at the national level displace conflicting state and local law. n279 They also become judicially binding in domestic as well as international commercial arrangements, for example by rendering certain contractual arrangements illegal or defeating claims based on domestic protective legislation that conflicts with international legal commands. Globalization of this sort obliges greater consideration of transnational and comparative principlesand materials in American courts. It not only promotes awareness of international and comparative precedents, but it also creates a pressure for conscious complementarity of decisionmaking between American and foreign tribunals, which in turn requires comparative analysis. In litigation over domestic application, American courts must interpret the international agreements in question. n280 When they do so, they must [*604] be aware that other foreign national tribunals will also interpret the same agreements, and that international tribunals may exist to provide final authoritative interpretation of disputed questions. n281 The U.S. courts thus may well have occasion to consider: (1) how other world tribunals have interpreted the provisions of the international agreement in question; (2) whether similar domestic law conflicts have been detected in other participating nations; and (3) if so, how other court systems have chosen to resolve those conflicts. At a minimum, U.S. courts probably would not want to give the international norms more restrictive effect in the United States than they received abroad. And while the U.S. courts might not be required to interpret the international agreements in the same way as foreign courts, divergent interpretation could trigger various forms of international conflict. This conflict may range from international litigation, to legal and diplomatic responses by other nations (or in some cases even by foreign corporations or citizens) whose interests are harmed by the U.S. interpretation, to economic or legal retaliation by foreign states whose interests are negatively affected by the U.S. decision. n282 Given the prospect for such international consequences, it would behoove American courts to attend carefully to potential interpretative divergences from foreign tribunals. n283 At a minimum, American courts need to know what foreign and international courts have said regarding the trade provisions in question before adopting a different interpretation. Where possible, the American courts should probably harmonize U.S. interpretation with the weight of [*605] interpretation elsewhere; n284 alternatively, they should have good cause, solidly grounded in U.S. law and policy, for adopting any interpretation that is at odds with comparative precedent. n285 In either event, they need to know what comparative law is on the interpretative issues in question in order to make an intelligent decision. They should not depart from comparative precedent lightly, let alone ignorantly or absent-mindedly. Ultimately, of course, authoritative
U.S. interpretation of disputed provisions in international trade agreements becomes the responsibility of the U.S. Supreme Court. The Court is most likely to take up this duty where the terms of the agreement are subject to competing plausible interpretations. n286 That possibility could emerge (as with domestic statutory law) through a conflict in interpretation by lower federal courts, or between federal and state tribunals. In the case of international agreements, it could also arise because of a conflict in interpretation between a lower U.S. court and a foreign tribunal.
such a case, the Supreme Court's interpretation will perform the important constitutional function of providing uniformity in federal law. n287 But the Court's choice among competing interpretations of international agreements will carry additional constitutional significance. This occurs both because the choice will affect how the provision in question preempts other American laws, and because the choice will have implications for the exercise of national legislative and executive powers. n288 Although the Court may not be technically [*606] required to consider foreign interpretations of the disputed treaty language, there are powerful constitutional policy reasons for doing so. A decision at odds with international precedent, for example, could affect the President's ability to conduct foreign policy by triggering international litigation, inviting retaliatory measures by other states, or leading to sanctions against the United States in international tribunals. n28. As globalization progresses, and as U.S. participation in international agreements proliferates, the circumstances in which both the Supreme Court and lower federal courts need to be aware of foreign precedents will increase. As they do, judicial demand for information about foreign law will grow, as will the need for both advocates and judges proficient in understanding and utilizing international and foreign precedent. n290 Over time,the inevitable effect will be more extensive knowledge and use of foreign legal decisions in American courts.
2.Relying on CIL for contentious issues causes public backlash against the judiciary
Honorable J. Harbie Wilkinson III, judge for US curiut court, 4th district, Spring 2004 (“THE USE OF INTERNATIONAL LAW IN JUDICIAL DECISIONS”, 27 Harv. J.L. & Pub. Pol'y 423, lexis)
Where courts go too far, in my view, is where they rely upon international (and mostly European) precedents when resolving important and contentious social issues. This "internationalization" of the Constitution on domestic social issues raises three types of problems.The first is that an over-reliance on foreign precedents may serve to compromise judicial decisions in the eyes of the American public. Judges serve as unelected stewards of the Constitution whose power rests in part on their ability to persuade. While majorities may simmer [*426] when judges vindicate the rights of minorities, in the long run judges can promote respect for their decisions by appealing to principles that Americans can relate to as part of an American constitutional tradition. The counter-majoritarian difficulty is thus alleviated when judges draw upon common principles and ideas that form our shared American heritage. But when judges rely on foreign sources, especially for difficult constitutional questions concerning domestic social issues, they move the bases for judicial decision-making even farther from the realm of both democratic accountability and popular acceptance. They aggravate the risks already inherent in having unelected officials overrule popular enactments by creating the perception that foreign sentiment shapes domestic law. To be sure, examples from other countries may be illuminating. But the Court's legitimacy must ultimately rest on reliance and reference to the American Constitution and to American democratic; outcomes, from which their judicial authority springs. By relying on foreign laws and rulings over which the American people have no control -- either directly through the power of election or even indirectly through the process of judicial appointment -- judges risk estranging and disempowering the public. I fear that the internationalization of our constitutional values may thus undermine public acceptance of our judicial system. A closely related danger is that reliance on foreign precedents may stimulate popular perceptions that judges are out of touch with American culture. The risks of a common perception of judicial distance and removal should not be underestimated. The detachment and insulation which an independent judiciary properly enjoys should not be endangered by pronouncements that appear targeted at foreign and domestic elites rather than the American public at large. The power of persuasion which sustains judicial authority must not neglect those very people whose acceptance of judicial decree is most essential. Americans treasure their diversity and their identity. The great Willa Cather novels, My Antonia and O Pioneers!, still play a prevalent role in the American psyche, and the distance from American to European modes of thought remains in some vital particulars more psychological than physical. The distinguished Harvard historian, Bernard Bailyn, has noted that the power of the American Constitution derived from the fact that its framers were proud and stubborn provincials, that they did not accept all the received wisdom of the Continent, and that, for example, the [*427] animating constitutional idea of dual and concurrent sovereignties actually rejected the contrary notions of the French theorist Montesquieu.
3. Negative public opinion for the courts causes courtstripping, this makes CIL fail.
Helen Norton, Professor of Law, University of Maryland School of Law, Winter 2006 (41 Wake Forest L. Rev. 1003, “ARTICLE: RESHAPING FEDERAL JURISDICTION: CONGRESS'S LATEST CHALLENGE TO JUDICIAL REVIEW”, lexis)
Not only are these efforts increasingly successful, they are likely to reemerge in future proposals to shape subject matter jurisdiction and thus the balance of judicial power. The House's passage of two separate court-stripping bills in the same Congress represents a high-water mark in the court-shaping movement, as does its passage of the Pledge Protection Act in successive Congresses. Indeed, some of the dynamics that helped thwart earlier court-stripping measures appear to have diminished or disappeared altogether. n97 In the past, for example, the courts - and especially the Supreme Court - may have survived congressional attack due to their comparatively strong public reputation. n98Shifting perceptions of government institutions may weaken that shield, as one survey found that a majority of respondents agreed "that "judicial activism' [*1027] has reached the crisis stage, and that judges who ignore voters' values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable.'" n99 Other recent polls also suggest a drop in public support for the courts, including the Supreme Court, at least in some quarters. n100Changes in public opinion, accompanied by proponents' sheer political power, may encourage further jurisdictional realignment.
4. Court stripping destroys judicial legitimacy and seperation of powers
Andrew D. Martin, Prof of Political Science at Washington University 2001. (Statuatory Battles and Constitutional Wars: Congress and the Supreme Court)
But the large policy payoff in the constitutional cases. What doesthe ability of the President and Congress to attack through overrides or other means constitutional court decisions imply in terms of the cost of the justices bear? If an attack succeeds and the court does not back down, it effectively removes the court from the policy game and may seriously or, even irrevocably harm its reputation,credibility, and legitimacy. Indeed, such an attack would effectively remove the court from policy making, thus incurring an infinite cost. With no constitutional prescription for judicial review, this power is vulnerable, and would be severely damaged if congress and the president were effective in attack on the Court. But even if the attack is unsuccessful, the integrity of the court may be damaged, for the assault may compromise its ability to make future constitutional decisions and, thus, more long-lasting policy. One does not have to peer as far back as scott v. sandford to find examples; Bush v. Gore (2000, U.S.) may provide one. To be sure, the new President and Congress did not attack the decision, but other memebers of government did of course, unsuccessfully at least in terms of the ruling’s impact. Yet, there seems little doubt that the critics (not to mention the decision itself) caused some major damage to the reputation of the cout, the effects of which the justeces may feel in the not-so-distant future.
5. Seperation of powers is key to preventing tyranny
Martin H. Redish and Elizabeth J. Cisar, Duke University School of Law, December 1991
(“’If Angels Were to Govern’: The Need for Pragmatic Formalism in Separation of Powers Theory” Duke Law Journal, p. 449-506)
In any event, the political history of which the Framers were aware tends to confirm that quite often concentration of political power ultimately leads to the loss of liberty. Indeed, if we have begun to take the value of separation of powers for granted, we need only look to modern American history to remind ourselves about both the general vulnerability of representative government, and the direct correlation between the concentration of political power and the threat to individual liberty. The widespread violations of individual rights that took place when Pres- ident Lincoln assumed an inordinate level of power, for example, are well documented.128 Arguably as egregious were the threats to basic freedoms that arose during the Nixon administration, when the power of the executive branch reached what are widely deemed to have been intolerable levels.129 Although in neither instance did the executive's usurpations of power ultimately degenerate into complete and irreversible tyranny, the reason for that may well have been the resilience of our political traditions, among the most important of which is separation of powers itself. In any event, it would be political folly to be overly smug about the security of either representative government or individual liberty. Although it would be all but impossible to create an empirical proof to demonstrate that our constitutional tradition of separation of powers has been an essential catalyst in the avoidance of tyranny, common sense should tell us that the simultaneous division of power and the creation of interbranch checking play important roles toward that end. To underscore the point, one need imagine only a limited modification of the actual scenario surrounding the recent Persian Gulf War. In actuality, the war was an extremely popular endeavor, thought by many to be a politically and morally justified exercise. But imagine a situation in which a President, concerned about his failure to resolve significant social and economic problems at home, has callously decided to engage the nation in war, simply to defer public attention from his domestic failures. To be sure, the President was presumably elected by a majority of the electorate, and may have to stand for reelection in the future. However, at this particular point in time, but for the system established by separation of powers, his authority as Commander in Chief 130 to en- gage the nation in war would be effectively dictatorial. Because the Con- stitution reserves to the arguably even more representative and accountable Congress the authority to declare war,131 the Constitution has attempted to prevent such misuses of powerby the executive.132 It remains unproven whether any governmental structure other than one based on a system of separation of powers could avoid such harmful results. In summary, no defender of separation of powers can prove with certitude that, but for the existence of separation of powers, tyranny would be the inevitable outcome. But the question is whether we wish to take that risk, given the obvious severity of the harm that might result. Given both the relatively limited cost imposed by use of separation of powers and the great severity of the harm sought to be avoided, one should not demand a great showing of the likelihood that the feared harm would result. For just as in the case of the threat of nuclear war, no one wants to be forced into the position of saying, "I told you so."474 [Vol. 41:449]
6. We must reject tyranny in every instance or risk extinction
Sylvester Petro, Professor of Law @ Wake Forest, 1974 (Sylvester Petro, University of Toledo Law Review, Spring 1974)
However, one may still insist, echoing Ernest Hemingway – “I believe in only one thing: liberty.” And it is always well to beat in mind David Hume’s observation: “It is seldom that liberty of any kind is lost all at once.” Thus, it is unacceptable to say that the invasion of one aspect of freedom is of no import because there have been invasions of so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human aspiration. Ask Solzhenitsyn. Ask Milovan Djilas. In sum, if one believes in freedom as a supreme value and the proper ordering principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be emphatically identified and resisted with undying spirit. CP: Under Article 1, Section 8, Clause 10 of the the US Constitution, Congress should incorporate common international law into federal law. Congress should determine that the invasion of Iraq a violation of that law and therefore illegal and advise a withdrawal with all deliberate speed. The judiciary must wait for Congress to take the lead in incorporatating international law
Joseph Keller, Associate, O'Melveny & Meyers, New York. B.A. University of Illinois Urbana-Champaign, J.D. University of Michigan. Former clerk for the Eastern District of Virginia, Fall 2005 ("Article: Sovereignty vs. Internationalism and Where United States Courts Should Find International Law", 24 Penn St. Int'l L. Rev. 353, lexis law)
United States courts are currently addressing important questions of international law that should be decided in accordance with the Constitution of the United States and the separation of powers principle. Specifically, the courts must respect the will of Congress when interpreting treaties and the private rights they provide in federal courts. The courts should define customary international law by reference to state practice and in this context must be careful not to give inappropriate weight to the writings of academics. As a further matter, courts should not look to the concept of jus cogens or customary international law generally when defining legal relationships between the United States and its own citizens. In sum, concerns of democratic accountability and respect for the sovereignty of the United States and the constitutionally based separation of powers principle buttress the doctrinal contention that it is the duty of Congress to incorporate international law into federal law through the appropriate democratic processes. The incorporation of international law into U.S. law may be a laudable goal, especially with respect to human rights law, but the ends cannot justify improper means. Judges and law professors wishing for the rule of international law in U.S. courts must respect the Constitution of the United States and await further action by the democratically elected officials in the legislative branch of government.
A. Gendered scripts, taught to us from birth, determine the way we see the world. It is impossible to escape the effect social constructions of gender have on positive statements of the world
Bell Hooks, former Prof of English at Yale, Oberlin, USC, and City College in New York, Ph.D UC Santa Cruz, 7/25/04, “Understanding Patriarchy,” http://arizona.indymedia.org/news/2004/07/20613.php
Patriarchy is the single most life-threatening social disease assaulting the male body and spirit in our nation. Yet most men do not use the word "patriarchy" in everyday life. Most men never think about patriarchy-what it means, how it is created and sustained. Many men in our nation would not be able to spell the word or pronounce it correctly. The word "patriarchy" just is not a part of their normal everyday thought or speech. Men who have heard and know the word usually associate it with women's liberation, with feminism, and therefore dismiss it as irrelevant to their own experiences. I have been standing at podiums talking about patriarchy for more than thirty years. It is a word I use daily, and men who hear me use it often ask me what I mean by it. Nothing discounts the old antifeminist projection of men as all-powerful more than their basic ignorance of a major facet of the political system that shapes and informs male identity and sense of self from birth until death. I often use the phrase "imperialist white-supremacist capitalist patriarchy" to describe the interlocking political systems that are the foundation of our nation's politics. Of these systems the one that we all learn the most about growing up is the system of patriarchy, even if we never know the word, because patriarchal gender roles -are assigned to us as children and we are given continual guidance about the ways we can best fulfill these roles. Patriarchy is a political-social system that insists that males are inherently dominating, superior to everything and everyone deemed weak, especially females, and endowed with the right to dominate and rule over the weak and to maintain that dominance through various forms of psychological terrorism and violence. When my older brother and I were born with a year separating us in age, patriarchy determined how we would each be regarded by our parents. Both our parents believed in patriarchy; they had been taught patriarchal thinking through religion. At church they had learned that God created man to rule the world and everything in it and that it was the work of women to help men perform these tasks, to obey, and to always assume a subordinate role in relation to a powerful man. They were taught that God was male.These teachings were reinforced inevery institution they encountered--schools, courthouses, clubs, sports arenas, as well as churches. Embracing patriarchal thinking, like everyone else around them, they taught it to their children because it seemed like a "natural" way to organize life. As their daughter I was taught that it was my role to serve, to be weak, to be free from the burden of thinking, to caretake and nurture others. My brother was taught that it was his role to be served; to provide; to be strong; to think, strategize, and plan; and to refuse to caretake or nurture others. I was taught that it was not proper for a female to be violent, that it was "unnatural." My brother was taught that his value would be determined by his will to do violence (albeit in appropriate settings). He was taught that for a boy, enjoying violence was a good thing (albeit in appropriate settings). He was taught that a boy should not express feelings. I was taught that girls could and should express feelings, or at least some of them. When I responded with rage at being denied a toy, I was taught as a girl in a patriarchal household that rage was not an appropriate feminine feeling, that it should be not only not be expressed but be eradicated. When my brother responded with rage at being denied a toy, he was taught as a boy in a patriarchal household that his ability to express rage was good but that he had to learn the best setting to unleash his hostility. It was not good for him to use his rage to oppose the wishes of his parents, but later, when he grew up, he was taught that rage was permitted and that allowing rage to provoke him to violence would help him protect home and nation. We lived in farm country, isolated from other people. Our sense of gender roles was learned from our parents, from the ways we saw them behave. My brother and I remember our confusion about gender. In reality I was stronger and more violent than my brother, which we learned quickly was bad. And he was a gentle, peaceful boy, which we learned was really bad. Although we were often confused, we knew one fact for certain: we could not be and act the way we wanted to, doing what we felt like. It was clear to us that our behavior had to follow a predetermined, gendered script.We both learned the word "patriarchy" in our adult life, when we learned that the script that had determined what we should be, the identities we should make, was based on patriarchal values and beliefs about gender.