>PG There’s been a large volume of commentary attempting to parse the role of international norms in those two Kennedy decisions, and I won’t rehash it all here. I will say that to the extent things have changed since 1958, one very salient difference is that an organized movement with strong law school participation has arisen that urges the Court to recognize supposed international-human-rights norms, and that movement was very active in the Roper and Graham cases, in both amicus briefs and the surrounding public campaign. Did this campaign work? I agree that Justice Kennedy seemed to be careful to avoid any definite indication of whether the norming arguments made a difference, but advocates for those norms have interpreted both decisions as a sign that they are making progress in establishing this set of arguments as legitimate, and I am disinclined to call them wrong.

Incidentally, in both opinions Kennedy cites Trop v. Dulles (1958) as an early instance of the Court’s noting, in an 8th Amendment decision, how other countries punish their citizens. Frankfurter’s Trop dissent, joined by three other justices, doesn’t take the now-standard form of deriding the references to international law, but instead says, “Many civilized nations impose loss of citizenship for indulgence in designated prohibited activities….” Does anyone know if people flipped out about that citation in 1958 the way they do nowadays? I turned up very little contemporaneous commentary about Trop v. Dulles from a Google News check, but someone who has Lexis access could answer the question more certainly.

On the other hand, while in absolute terms there may be a large number of lawyers in America, and therefore one could plausibly argue we are “overlawyered,” nevertheless, much of what takes place in America does so purely independently of the law. That is, the law is irrelevant to most of our American experience. It’s a niche market, so to speak. Those who obsess over it will be disturbed by negligible inefficiencies and irregularities, but most of us really don’t care.

Bad ideas from law schools are a consequece, perhaps unintended, of the incomprehensible proliferation of law schools in an era in which demand for lawyers continues to decline. http://kowalskiandassociatesblog.com/2010/07/25/what-if-they-built-a-new-law-school-and-nobody-came/

Best of luck with the book.

>Craig Matteson – For review copies (which will be bound galleys at this point) you should approach Encounter Books.

>Xanthippas – As I argue in the book, much of today’s discourse about alleged domestic U.S. violations of international human rights, along with a good bit of the litigation, emerges from the very active international-human-rights programs and centers at law schools like Columbia and NYU. Most of the brand-name players among human-rights NGOs, such as Human Rights Watch and the ACLU, also maintain close ties to those law school projects and faculties.

How do the new international-law developments confer power on very highly educated lawyers? A few of those lawyers do wind up pressing cases in Geneva, The Hague, or New York. But the more pervasive way international law is likely to influence the outcome of domestic American legal disputes is for our courts to start reinterpreting U.S. sources of legal authority in ways supposedly consistent with international norms and obligations. Thus in the high-profile pair of juvenile justice cases, Roper v. Simmons (2005) and Graham v. Florida (2010), Justice Kennedy was apparently swayed by the international norms that purportedly had formed on the sentencing questions at issue. (Law school projects took a central role in framing and advancing the public and litigation campaigns that culminated in Roper and Graham.)

If this trend continues, and by 2026 officials in Nebraska and New Hampshire find that before revamping the state’s sentencing or prison management practices in any major way they are expected to consult the purported norms of international human rights practice, there will indeed have been a power shift toward those professionally ensconced as compilers, interpreters and oracles of purported international norms – a group that is now, and will probably be then, quite heavily weighted with elite law school grads.

Hope this answers your question.