the logic of science and the logic of law

Jessica Silbey jsilbey at suffolk.edu
Mon Apr 23 14:19:05 PDT 2007


The military cases are an interesting example - some say the court defers
widely to the military and executive generally when the assertion is of
necessity or emergency. In other words, that the court relaxes scrutiny in
these cases (Korematsu is the quintessential example). More recent cases
arising out of Guantanamo detentions are murkier as to the court's strength
of its review of the factual underpinnings of the federal branch's assertion
of power and they resonate with more formalist arguments of congressional
intent. Assuming it is true that the court defers less to scientific
findings (or social science findings) than it does to military findings, why
would that be? What part of the institutional role of the court (or the
capacity of the judges) makes one subject area more off limits than the
other? 

 

Perhaps my inquiry is more appropriate for the law-courts listserv given it
sounds in "how courts behave" rather than "what courts say."  

________________________________

Jessica Silbey

Assistant Professor of Law

Suffolk University Law School

120 Tremont Street

Boston, MA 02108

617-305-6270 (office)

617-305-3079 (fax)

jsilbey at suffolk.edu

ssrn.com/author=380489

 

 

  _____  

From: Richard Dougherty [mailto:doughr at udallas.edu] 
Sent: Monday, April 23, 2007 5:10 PM
To: jessica silbey; 'Con Law Prof list'
Subject: Re: the logic of science and the logic of law

 

I think Prof. Silbey's question might apply to a lot of areas of expertise
that the Court is compelled to make judgments about, or refrain from making
judgments about.  For instance, in many cases dealing with war powers, the
Justices make choices about what sorts of actions the military is justified
in taking, or what practices will or will not substantially affect the
prosecution of the war.  Are there other candidates that might fit this
category?  (Science, medicine, history, the economy...)  In part the inquiry
must be what kind of limits, if any, are there on justices making such
choices?

Richard J. Dougherty


-----Original Message-----
From: "Jessica Silbey" <jsilbey at suffolk.edu>
Sent 4/23/2007 11:39:47 AM
To: "'Con Law Prof list'" <conlawprof at lists.ucla.edu>
Subject: the logic of science and the logic of law




I wonder what people make, if anything, of the fact that the four justices
who dissented in Massachusetts v. EPA, because they disagreed with
overwhelming scientific consensus that global warming is causing sufficient
harm to provide the plaintiffs with standing, are the same four justices
(plus Kennedy) who voted in Carhart II to disregard national medical
consensus that intact D&Es are necessary procedures for some pregnant women?
Has there been any coverage on this parallel?

 

Jessica

 

________________________________

Jessica Silbey

Assistant Professor of Law

Suffolk University Law School

120 Tremont Street

Boston, MA 02108

617-305-6270 (office)

617-305-3079 (fax)

jsilbey at suffolk.edu

ssrn.com/author=380489

 

 

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