Article Request, and Extra-legal Cases

Tue Oct 4 11:29:03 PDT 2011

Mark, I tend to agree with Sean that there's not much value in endeavoring,
in the abstract, to figure out "what to do with a term" as to which there's
no common meaning and countless possible, deeply contestable meanings.
"What to do" with it is to define what you mean by it, so that your
discussants can all be talking about a common phenomenon . . . or else use
another term.

Having said that, I do have two candidates for SCOTUS cases that were
"extra-legal" not in terms of their substantive results or reasoning (for
that one would need the meaning you're declining to provide), but in the
much more particular sense of *the Court itself acting in violation of the
law* in deciding or not deciding the case -- cases that I just so happen to
be teaching to my class of 1-Ls just now:

1.  *Marbury* -- for many reasons with which you're all familiar, e.g.,
Marshall should have recused; Marbury was uninterested in acting as Justice
of the Peace; the case might have been collusive in several respects;
Marshall reaches out to decide several important "merits" questions before
turning to jurisdiction and determining that the Court lacks it; etc.  (And
that doesn't even include the arguably tendentious readings of section 13
and article III so as to create an "unavoidable" conflict between them.)

2.  *Naim v. Naim*, the second time around (350 U.S. 985), *after* the
virtually extra-legal remand to the Virginia Supreme Court, in which the
Court refuses once again to hear the case, notwithstanding a statute
prescribing mandatory jurisdiction, on the unexplained and seemingly
inexplicable ground that the state court decision "leaves the case devoid of
a properly presented federal question."
 I might add, if for no other reason than to provoke, that because I tend to
think the Court probably did the "right" thing in both *Marbury *and *Naim*,
these examples certainly raise the question whether acting "extra-legally"
is necessarily unjustified.

On Tue, Oct 4, 2011 at 1:56 PM, Mark S Kende <mark.kende at drake.edu> wrote:

>  Sean:****
>
>   Thanks for your note.  My query deliberately tried to leave the
> definition of “extra-legal” open for folks to fill in with their own notions
> since the term is capable of multiple meanings.  Part of what I’m trying to
> figure out is what to do with that term, and what cases it might apply to.
> I appreciate your suggestions.  Best, Mark****
>
> ** **
>
> *From:* Sean Wilson [mailto:whoooo26505 at yahoo.com]
> *Sent:* Tuesday, October 04, 2011 12:34 PM
> *To:* Mark S Kende; 'conlawprof at lists.ucla.edu'
> *Subject:* Re: Article Request, and Extra-legal Cases****
>
> ** **
>
> ... I think it would be beneficial to ask at the outset what you mean by
> "extra legal." You'll only end up with theories as to what that is, in the
> context that you ask the question. A better question, it seems, would be to
> simply ask this: what decisions most egregiously breach the things the
> Constitution could be TAKEN to say, without a sufficient cultural or
> political warrant (explanation).  In this sense, your target is not a fixed
> one. What constitutes "legal" are all those potential arrangements that
> could be had for constitutional text. Another question to ask which is much
> better is: among the chosen arrangements today that are "legal,"  how could
> they be much much different (and better), yet still remain "legal." This
> asks, in essence, how could we more creatively arrange the constitution to
> best suit American culture?  ****
>
>  ****
>
> Regards and thanks.
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org
> SSRN papers:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=596860
> Wittgenstein Discussion:
> http://seanwilson.org/wittgenstein.discussion.html****
>
>  ****
>   ------------------------------
>
> *From:* Mark S Kende <mark.kende at drake.edu>
> *To:* "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
> *Sent:* Tuesday, October 4, 2011 1:08 PM
> *Subject:* RE: Article Request, and Extra-legal Cases****
>
> I have two questions for the list.  Feel free to reply privately.****
>
>  ****
>
> 1.I recently saw an SSRN paper mentioned that dealt with the fact that the
> House of Representatives now requires its members to assert the
> constitutional foundations for any legislation being introduced.  I believe
> the paper assesses the legal significance of this House rule.  Does anyone
> know the SSRN or other cite for this paper?****
>
>  ****
>
> 2.Which U.S. Supreme Court cases, if any, do folks think should or could be
> considered “extra-legal” in some sense?  I don’t mean cases that people
> really dislike, though there may be some overlap.  I also would prefer to
> stay away from cases that have been overturned by the Court itself as that
> seems too easy.  You can define that term as you wish otherwise.  (Perhaps
> one answer some folks would have is no cases, as the Court’s decisions can’t
> be “extra-legal.”)  Korematsu occurred to me as a possibility (though I can
> see the counter-arguments) but I would love to hear what others think.****
>
>  ****
>
> Thanks.  Mark****
>
>  ****
>
> Professor Mark Kende****
>
> James Madison Chair in Constitutional Law****
>
> Director, Drake University Constitutional Law Center****
>
> 2507 University Ave., Des Moines, IA 50311****
>
> 515-271-3354, 515-271-1858 (fax)****
>
> mark.kende at drake.edu****
>
>  ****
>
> Author, Constitutional Rights in Two Worlds:  South Africa and the United
> States (Cambridge Univ. 2009),
> http://www.amazon.com/Constitutional-Rights-Two-Worlds-Africa/dp/product-description/0521171768
> ****
>
> SSRN sample papers:  http://ssrn.com/author=339761 ****
>
> Center Web Site:  http://www.law.drake.edu/academics/conLaw/  ****
>
>  ****
>
>  ****
>
>
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