Copyright (c) 2009 All rights reserved. http://works.bepress.com/penelope_pether Recent documents in Penelope J Pether en-us Sun, 31 May 2009 10:22:23 PDT 3600 http://works.bepress.com/penelope_pether/59 http://works.bepress.com/penelope_pether/59 Wed, 16 Jul 2008 06:44:06 PDT In this contribution to the Quinnipiac Law Review's annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship "against the grain," concluding both that Tushnet's later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.Seeking to make visible the equally characteristic but less assertive orientation to "Others" that runs through Tushnet's work, I use the native title and Chapter III judicial power jurisprudence of the Australian High Court to argue that Tushnet's antijuridification scholarship might be read as a rhetorical gambit to shock left legalism out of what Judith Resnik describes as its "McCleskey problem," its blindness to the local and particular evidence of legal institutions' complicity in structural subordination.I conclude that a close reading of both Tushnet's contributions to The Constitution in Wartime and his antijuridification jeremiad, Taking the Constitution Away from the Courts suggest his awareness of the need to confront the judges and the courts with their practical responsibility for maintaining constitutionalism. Penelope J. Pether http://works.bepress.com/penelope_pether/58 http://works.bepress.com/penelope_pether/58 Wed, 02 Jul 2008 07:47:29 PDT Penelope J. Pether http://works.bepress.com/penelope_pether/57 http://works.bepress.com/penelope_pether/57 Wed, 02 Jul 2008 07:45:23 PDT Penelope J. Pether http://works.bepress.com/penelope_pether/56 http://works.bepress.com/penelope_pether/56 Wed, 02 Jul 2008 07:41:17 PDT "Daisy Miller" is a story about American Exceptionalism; about the banal and tawdry tragedy that comes of having faith in it; about Daisy's (the lawyer Giovanelli's "new found land") tragic flaw - that she is unaware of how others perceive her, or she doesn't care; or about ambiguities, or seeing things. It can be made to speak volumes about the power of perception, as about what Tayyab Mahmoud has called "[a]doption and deployment of identity." Or about the seductive power of fictions of specifically national identity: for James critic Leslie Fiedler, "the American Girl is innocent by definition, mythically innocent; and her purity depends upon nothing she says or does...."A contemporary American anti/heroine, Judith Miller, is likewise figured as interpretable: did she need a "freely given" "personal" waiver of confidentiality to identify her source, and when did she get one; was she a "good, honorable principled reporter" or "A Woman of Mass Destruction"; and what did New York Times Executive Editor Bill Keller's accusation of an "entanglement" with "Scooter" Libby connote?This essay takes the intrigues generated around "the Miller Girls" as a guide to reading the stories told by, surrounding, excised from, and immanent in the 2005 decision of the United States Court of Appeals for the District of Columbia in In re Grand Jury Subpoena, Judith Miller, and explores some fictions of American Exceptionalism cultivated both by "common law constitutionalism," and by a Federal judiciary laying down the law in the shadows cast by the "War on Terror" and the jurisdictions of expatriation. Penelope J. Pether http://works.bepress.com/penelope_pether/55 http://works.bepress.com/penelope_pether/55 Wed, 02 Jul 2008 07:38:49 PDT Penelope J. Pether http://works.bepress.com/penelope_pether/54 http://works.bepress.com/penelope_pether/54 Wed, 02 Jul 2008 07:37:30 PDT This essay takes the late Robert Cover's insight that "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning," and thus that "For every constitution there is an epic" as the starting point for a reading of Australian legal and literary texts about the relationship of the nation and "outsiders," as between constitutional subjects and texts. Ranging from "legal faction" texts Evil Angels (about the "Dingo Baby" case) and "Dark Victory" (about the Tampa incident) and "The Castle", Rob Sitch's filmic satire on the Australian takings clause and the landmark Native Title Decision, Mabo v. Queensland, No 2, to the recent High Court cases Al Kateb, Behrooz, Re Woolley, and Ruhan, it offers a critical account of recent Australian constitutional jurisprudence regarding asylum seekers and "sexually violent predators." The essay argues that this recent High Court jurisprudence offers a radically circumscribed reading of Chapter III judicial power (analogous to Article III judicial power in the U.S. Constitutional context), and offers comparative constitutional law perspectives on problems in U.S. Constitutional hermeneutics. Penelope J. Pether http://works.bepress.com/penelope_pether/53 http://works.bepress.com/penelope_pether/53 Wed, 02 Jul 2008 07:34:55 PDT This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou's Being and Event, uses Badiou's theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of Islamic asylum seekers, enemy combatants and terrorism suspects, and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to the demands of the long war, or of post-9/11 constitutionalism on subjects serving on Western Anglophone common law constitutional courts.Drawing in particular on the anti-terrorism control order jurisprudence of Justice Sullivan of the English High Court and the Chapter III judicial power jurisprudence of the Australian High Court, in particular as the latter deals with what is in the U.S.A. euphemistically called the preventive detention of sexually violent predators, and the indefinite detention of Islamic asylum seekers in the aftermath of 9/11, the article concludes that Australian High Court Justice Michael Kirby's recent jurisprudence of dissent instantiates a militant procedure of common law constitutional judging of others.The Article suggests that the transformative praxiological potential of Being and Event lies in the radical uncertainty that this philosophy both implies and depends on, its anxiety, obsession and desire, and that the necessary uncertainty of the subject as to the occurrence of an event is at the heart of what might be the virtues of Badiou's account of being and event for a theory of post-9/11 constitutional judicial ontology. Militant judging recognizes both the constitutional judge's - and constitutionalism's - other, and in judging his equals those others on whom he passes judgment, the militant judge inscribes equality, becomes equal to the event. Penelope J. Pether http://works.bepress.com/penelope_pether/50 http://works.bepress.com/penelope_pether/50 Fri, 10 Aug 2007 07:50:36 PDT Penelope J. Pether http://works.bepress.com/penelope_pether/49 http://works.bepress.com/penelope_pether/49 Fri, 10 Aug 2007 07:48:53 PDT Penelope J. Pether http://works.bepress.com/penelope_pether/48 http://works.bepress.com/penelope_pether/48 Fri, 10 Aug 2007 07:47:52 PDT Penelope J. Pether