South Africa Constitutional Court -- Justice Sachs

Justice Sachs, in his article in the Green Bag (Autumn '03), which is based on his talk at HLS in April '00, makes two points that are interesting to me. First, he says our judicial approach is to assume that movement away from the status quo must has to be justified, while in SA the assumption is that the status quo is unjust and should be changed. He doesn't discuss Bickel's criticism of this idea as counter-majoritarian. Second, he emphasizes SA's use of international and foreign precedent, while US adjudication is "most often self-contained and self-referential." (This must have been written before the Lawrence decision.) He compliments us: "The U.S. is great in terms of the brightness of its judicial language, the use of the pungent phrase, the presentation of the sharply-posed issue." That's a great sentence; it's a good article.