Republican Justice Research Articles

Workplace Democracy as the Liberal Republican Default

Liberal republican justice requires adequate, reasonably equal protection against domination while giving everybody a reasonably equal opportunity to live their lives as they see fit. This article investigates which central policy follows from it for workplace non-domination, under realistic assumptions about the nature of our working lives and some structural characteristics of advanced economies (especially the presence of large firms). It argues for a legal default of workplace democracy, understood as any arrangement that gives workers equal individual control rights over the management of their firm, and, as a body, more control rights than any other groups of enfranchised stakeholders, taken together. The argument has two steps. The first demonstrates where the most promising alternative liberal strategy – that of enhancing all individuals’ power to exit from their job through granting unconditional resources – fails. The second shows how this failure leads to the specific conception of default workplace democracy outlined.

RSFSR People’s Commissariat for Justice and its activity on the courts management (1941-1945)

The article, based on documents from the State Archive of the Russian Federation (GA RF), evaluates the role of the RSFSR People’s Commissariat for Justice (PCJ) in the courts management and comprehensively presents the mechanism of this management by the republican justice administration bodies in the period 1941-45. The author analyzes the main tools of the mechanism in extraordinary war conditions. The conclusion is about the combination of two trends in the activities of justice administration bodies. On the one hand, these authorities sought to achieve uniformity in the courts functioning and the correctness of their application of legislation, but, on the other one, carried out direct illegal pressure on them. The justice administration by the republican PCJ led to large-scale repressions, but at the same time caused the relative stability of the system and its ability to function in the war situation.

Просопографический портрет руководителей Наркомата юстиции РСФСР в годы Великой Отечественной войны 1941‒1945 гг. По документам РГАСПИ и ГАРФ

In reference and research publications there is almost no information on most heads of the republican justice administration body, the RSFSR People’s Commissariat for Justice (PCJ RSFSR), of 1941?45. This is largely due to limitations of the source base and secondariness of republican bodies in the USSR. Meanwhile, during the war, the republican justice administration bodies were endowed with great powers. Not only they monitored the activities of the courts and correctness of their application of legislation, but also issued secret instructions of illegal nature. In this regard, the identity of their heads, who held such powers and had such impact on court practice, is of great importance. The article draws on party nomenclature accounting records from the Russian State Archive of Socio-Political History (RGASPI) to reconstruct official biographies of two people’s commissars for justice of the RSFSR and four their deputies. The prosopographic method has permitted to create a collective portrait of senior officials of the republican administrative justice bodies in the period between two personnel purges of the Soviet justice system – prewar one and postwar one. According to the documents, the nominees who took senior positions in the PCJ RSFSR on the eve of the war were relatively young and from “correct” social background. In the nomenclature system their lack of professional education and experience was compensated by their Bolshevik affiliation, following the main trend of the Stalinist personnel revolution. The official biographies of nomenclature establishment, as well as presence of odious figures and persons with dubious reputations among the PCJ RSFSR senior officials allow the author to conclude that appointment of nomenclature personnel to the republican People’s Commissariat for Justice by residual principle eroded its authority. Their lack of professionalism and practical experience had a direct impact on the activities of the PCJ RSFSR under the extreme war conditions. In the purge of the justice system in 1947?52, the establishment of the republican People’s Commissariat for Justice lost their posts. Thus, senior officials of the PCJ RSFSR repeated the fate of their prewar predecessors, but unlike the latter, they were not repressed.

The Moral Pitfalls of Cultivated meat: Complementing Utilitarian Perspective with eco-republican Justice Approach

The context of accelerated climate change, environmental pollution, ecosystems depletion, loss of biodiversity and growing undernutrition has led human societies to a crossroads where food systems require transformation. New agricultural practices are being advocated in order to achieve food security and face environmental challenges. Cultivated meat has recently been considered one of the most desired alternatives by animal rights advocates because it promises to ensure nutrition for all people while dramatically reducing ecological impacts and animal suffering. It is therefore presented as one of the fairest means of food production for the coming decades, according to utilitarian arguments.However, food security, environmental concerns and animal welfarism guided by a short-term utilitarianism could have techno-optimism bias and could result in some forms of oppression such as anthropocentrism. I argue that there are still deep-rooted moral issues in food systems that are not addressed primarily by lab-grown meat, mainly derived from a loss of sovereignty. Food practices developed in high-tech labs with artificial interventionism constrain the ability of living entities (that are used as food) to flourish on their own terms. This paper aims to explore how sovereignty entitlements for humans and nonhumans are often overlooked by advocates of cultivated meat and the moral challenges it may pose. Accordingly, a more than utilitarian approach framed by ecological and republican justice is proposed here to shed light on some pitfalls of food chains based on cellular agriculture.

Sismondi’s Price Theory

This article examines the evolution of Sismondi’s price theory as well as his concept of market from 1803 to 1838. Sismondi’s early 1803 price theory in terms of supply and demand is first examined and contrasted with that of Smith in the Wealth of Nations. The progressive alterations brought to this initial formulation are discussed with the help of the relevant chapters from Nouveaux Principes ([1819] 1827) and from Études (1836–1838). In price theory terms, throughout the years Sismondi grew more and more skeptical about the process through which these prices would come about. Connecting this analytical issue with his concept of republican justice, he comes to the conclusion that a market economy characterized by unlimited competition will never lead to a socially desirable solution: such an order is neither efficient, nor natural or spontaneous and political economy is not morally neutral. In short, for Sismondi, the market never stood alone while, for him, the Ricardian approach gave nearly exclusive pride of place to market in the pursuit of wealth and happiness.

Foreword: The Degradation of American Democracy—and the Court

Foreword: The Degradation of American Democracy—and the Court

Cooley v. Board of Wardens and its Nineteenth‐Century Legacy

<i>Cooley v. Board of Wardens</i> and its Nineteenth‐Century Legacy

How Conservative Will President Trump’s Next Supreme Court Nominee Be?: A Short Empirical Investigation

With the retirement of Justice Kennedy, the Supreme Court will have a new swing justice to decide which side of 4-4 splits to join. Most have thought that Chief Justice Roberts would assume that new role. But that would only be if President Trump appoints someone to the right of the Chief. Yet what if the President assigns someone to Roberts’ ideological left? Then that new justice would be the swing justice (and arguably the most important justice on the Court). And since Republican-appointed justices tend to become more liberal the longer they sit on the Court, how conservative might each of President Trump’s finalists be in 10, 20, or 30 years given the average conservative deterioration rate of past Republican justices? To answer these questions, this paper draws on recent scholarship on the ideology of law clerks hired by particular judges to create a new measure of ideology in order to be able to compare potential nominees with Supreme Court justices. And the paper leverages the familiar legal concept that one is known by their associates. Thus, the paper’s methodology is founded on a common sense assumption that has been validated by political scientists: conservative judges tend, on average, to hire conservative clerks and liberal judges tend, on average, to hire liberal clerks. However, this paper’s measure can only be applied to those potential nominees who have previously been a judge and had one of their clerks also clerk on the U.S. Supreme Court. And since not all of President Trump’s four finalists have done so, this paper only examines Judges Brett Kavanaugh, Raymond Kethledge, and Amul Thapar. Though it could be applied to others on President Trump’s list of 25 potential nominees. I find that the three finalists able to be measured (Kavanaugh, Kethledge, and Thapar) would all likely begin on the Court more conservative than Chief Justice Roberts and less conservative than Justices Alito, Gorsuch, and Thomas, with Kavanaugh likely being the most liberal Republican-appointed judge appointed to the Court since Stevens. Additionally, after one decade the three finalists would still be more conservative than Roberts currently is; after two decades Kavanaugh would be about where Justice O’Connor was when she retired and Kethledge and Thapar would still be more conservative than where Roberts is today; and after three decades Kavanaugh would be more liberal than Justice Kennedy was when he retired, Kethledge would be about where O’Connor was when she retired, and Thapar would be more conservative than that, but less conservative than Roberts currently is.

Acusaciones contra jueces legos ante jueces de Letras: uso social del avance de la justicia letrada. Zona centro-sur de Chile, 1824-1875

El articulo dialoga con la literatura que ha examinado a los denominados “jueces legos”, como sosten de las practicas judiciales e integrantes de las sociedades a las que pertenecian los litigantes. Es una discusion centrada en el periodo previo a la expansion de la justicia letrada que se instalo en los distintos paises de Latinoamerica desde la segunda mitad del siglo XIX. La investigacion problematiza los usos sociales de la emergente justicia letrada, que emprendieron actores sociales para judicializar conflictos mantenidos con jueces legos de su territorio. A la vez, se interesa en las reacciones de los jueces de Letras frente a estas practicas y estrategias. El escrutinio se concentra en la zona centro-sur de Chile durante el periodo de configuracion de un aparato de justicia republicana, caracterizado por la atribucion progresiva de facultades fiscalizadoras a los jueces de Letras sobre los jueces legos. Se analiza un cuerpo documental de 47 expedientes judiciales por acusaciones criminales de distintos sectores sociales, contra subdelegados e inspectores de su residencia, ante jueces de Letras de la zona. Los conflictos y los usos sociales se estudian desde un enfoque culturalista, recurriendo a la nocion de “culturas juridico-judiciales” para comprender los valores, discursos y el saber-hacer en instancia judicial. Los resultados se presentan mediante un estudio de casos, a traves de los que se evidenciaron las lecturas que ensayaron los actores sociales, respecto al proceso de fiscalizacion judicial. Desde esa evaluacion, los litigantes trasladaron sus querellas contra subdelegados e inspectores, hacia los juzgados de Letras que iban instalandose en este espacio. Ademas, estos magistrados manifestaron una validacion de estos movimientos, aceptando las acusaciones y solicitudes procesales de los litigantes. Palabras claves: jueces legos, historia de la Justicia, Chile, siglo XIX.

Civic Republican Social Justice and the Case of State Grammar Schools in England

The aim of this paper is to consider the ways in which civic republican theory can provide a meaningful and useful account of social justice, one that is which holds resonance for educational debates. Recognising the need for educationalists interested in civic republicanism to pay greater attention to ideas of justice—and in particular social justice as it concerns relationships between citizens (citizen to citizen, group to group or citizen to group)—it is argued that a form of civic republicanism committed to freedom as non-domination is capable of providing a substantive model for analysing social (in)justice within educational arenas. After positioning the contribution offered here within existing educational literature on civic republicanism, salient elements of social justice as freedom as non-domination are identified. On this basis, debates concerning the existence and potential expansion of state (public) grammar schools in England are considered in relation to the account of republican social justice as non-domination. It is argued that from this republican position grammar schools (1) represent an arbitrary domination of the interests of those less well off by those with greater material and cultural capital and (2) in doing so lead to advantages for some at the expense of others. Though the focus of the paper is on grammar schools in England, it is suggested that republican justice may be a useful frame for considering similar educational cases in England and elsewhere.

A Model of First Amendment Decisionmaking at a Divided Court

On First Amendment issues, today’s Supreme Court is arguably the most protective in the institution’s history. But the apparent libertarian consensus masks a surprisingly deep disagreement about the manner in which First Amendment decisions should be made. The Court’s Republican justices prefer an austere, formal approach in which logical conclusions are pursued to the farthest reach. The Court’s Democratic justices, on the other hand, would follow a more complex, contextual approach in which rules and standards are often custom-tailored to narrow factual domains. This Article models that divide. I demonstrate that the Court’s First Amendment case law over the past three decades has conformed to a small set of unspoken rules that I call “the four tenets.” These four tenets have defined First Amendment doctrine for nearly thirty years, and they are today so deeply ingrained that we barely notice them. Yet they do not represent a consensus position. Instead, the Court’s four Democratic justices stand prepared to break with the four tenets, and President Trump’s nominee could well supply the fifth vote. If that occurs, it will mean the end of an era in First Amendment law and the beginning of a new one.

Supreme Court Justices’ Loyalty to the President

A statistical analysis of voting by Supreme Court justices from 1937 to 2014 provides evidence of a loyalty effect—justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the justices in question. However, the loyalty effect is much stronger for Democratic justices than for Republican justices. This may be because Republican presidents are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty.

Supreme Court Justicess Loyalty to the President

A statistical analysis of voting by Supreme Court justices from 1937-2014 provides evidence of a “loyalty effect” — justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the justices in question. However, the loyalty effect is much stronger for Democratic justices than for Republican justices. This may be because Republican presidents are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty.

Republican justice

I raise three objections to Philip Pettit's republican account of justice: (a) that it fails to account adequately for the role of certain values such as substantive fairness; (b) that it represents an uncomfortable hybrid of egalitarianism and sufficientarianism; and (c) that it fails Pettit’s own ‘eyeball test’. I then conclude in a more constructive vein, speculating about the kind of account of justice it is supposed to be and suggesting that, construed a certain way, it may have resources for answering the three objections.

Power to the people: freedom as non-domination, disabling constraints and the eyeball test

While there has been a large focus on what it means to be unfree in the neo-Roman republican literature, what it means to be non-free has received much less attention. Prima facie, this should not be surprising. After all, we tend to hold a special place in our normative theorising for the kinds of constraints that come about via the intentional actions of other agents rather than those that come about via the indirect, aggregate action of independently motivated social actors. However, as I argue in this article, if republicans advocate ‘structural egalitarianism’ as Pettit claims, then there are certain disabling constraints – constraints derived solely from being non-free in a choice – that deserve closer attention. Indeed, I claim that in failing to fully appreciate the importance of non-freedom, Pettit’s ‘eyeball test’ – the yardstick for republican justice – leaves in place certain disabling constraints to action which render some citizens structurally unequal vis-à-vis others.

From the Particular to the General: Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts

The Rehnquist and Roberts Courts have reinterpreted rules 8, 23, and 56 of the Federal Rules of Civil Procedure, in each case altering them to restrict access to the federal courts and make early dismissals more readily available. Neither changes in the text of the rules nor new discoveries about their original intended meaning justified those decisions. Indeed, the reinterpretations conflicted with the stated purposes of those rules and contradicted the Court’s own repeated acknowledgments that it has no authority to change the meaning of any Federal Rule once Congress has adopted it. This article examines those changed interpretations, shows that they brought parallel anti-plaintiff results, and demonstrates that those results are consistent with the practical social results that flow from a wide variety of other decisions of the Rehnquist and Roberts Courts. The decisions construing Rules 8, 23, and 56 advance the same anti-plaintiff policies that mark the Court’s decisions restricting or defeating tort, antitrust, civil rights, securities, environmental, and employment discrimination claimants. The article argues that the Federal Rules decisions of the Rehnquist and Roberts Courts are not only compatible in their social results with their decisions in those other areas but that they all spring from the same extra-legal source, the commitments of the Court’s conservative Republican justices to their party’s market-based ideologies. Although those justices commonly assert text, tradition, and original meaning as justifications for their decisions, they have been wholly inconsistent in applying those methods. The consistency of their jurisprudence lies not in their application of any rigorous legal method but in their ideologically-rooted desire to block certain kinds of lawsuits and to protect from liability state governments, state and local officials, and corporate defendants.

Does the Creation of Majority Black Districts Aid Republicans? An Analysis of the 1992 Congressional Elections in Eight Southern States

This article asks a relatively simple question: does the creation of majority black electoral districts in the South aid Republicans? Given the post-1990 reapportionment of state legislative and congressional districts, and the zeal with which Sections Two and Five of the Voting Rights Act have been enforced by Republican Justice Departments, this is a timely question. The rise in the electoral fortunes of southern Republicans in the past decade also demands an answer to this question. Using electoral and district-level census data for the congressional districts of eight southern states in the 1990 and 1992 elections, this article found that, of the nine seats taken by the Republicans in 1992, four were due to the creation of majority black districts. Further, the following analysis finds that several previously uncompetitive Democratically held districts were made competitive by the creation of majority black districts, and can be expected to swing Republican in the next few years, especially given further acceleration of retirements by white Democratic incumbents.

Equity and Republican Justice

The incarceration of offenders (in prisons) with a view to their reformation was a social invention of the early Americans—the Quakers of Pennsylvania—some 200 years ago. The view that the goal of rehabilitation of offenders is either impossible or undesirable or both is now gaining ground rapidly. It has also become widely accepted, as the result of research and general experience, that the simplification of the problem of crime to the problem of the offender leads nowhere. The anchor points for moral values have been eroding, and reference to authority figures or symbols for guidance as to what is right and just is regarded as unsatisfactory. The concept of equity (which in volves comparisons between items) has come to be preferred over the concept of justice (which refers to a fixed ideal). Parole determinations, for example, may be "arbitrary" but they must not be "capricious." Justification of punishment for socially damaging behavior relies on the idea of com mensurateness ("deserts"). This raises to a new level of urgency the issue of doing justice in an unjust society—a difficulty which the prior philosophy of the treatment of offenders was able to avoid.