This is from University of Chicago law prof Brian Leiter:
I propose to defend and explore three claims in this lecture. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the U.S. Supreme Court: there, the Court operates as a kind of super-legislature, albeit one with a limited jurisdiction, essentially making decisions based on the moral and political values of the justices, and not on the basis of legally binding standards. ... Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role and thus should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the U.S. Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. ...
No doubt this is a controversial claim in the domestic law context. How about in the international economic law arena? Are trade and investment law panelists/arbitrators acting as a "super-legislature"?
Joost has been looking closely at just who these folks are: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2549050 He notes:
Litigants devote an inordinate amount of time and resources to researching and selecting WTO panelists and ICSID arbitrators. Even when it comes to WTO Appellate Body members, where the three division members are randomly selected, parties are known to have timed their appeals strategically so as to attract or avoid specific ABMs. Who decides matters.
So people are already spending a lot of time and effort on this. If there is a "super-legislature," should they be spending even more? Or is "super-legislature" just an attention-grabbing term, designed to inflame the debate and garner attention (and blog traffic)?
