Year: 2026
Type: article
Abstract: Although judicial opinions are designed to appear value free, principles are deeply embedded in these opinions; they are communicated in such a way as to appear purely legal disputes. This generic bind in which opinions must adjudicate fundamental disagreements over values as if they are not in fact an issue of value at all hinders the full resolution of some disagreements. Suits brought to the court by plaintiffs concerned, for example, about conservation, the cultural significance of land to a tribe, or other values must instead translate their concerns into appeals to standing recognizable to the court. After standing is established, arguments must proceed on the basis of legal arguments disconnected from underlying value conflicts. As such, the values giving rise to a difference of opinion presented before a court often deviate significantly from those held by the parties, resulting in a performative practice of political disagreement. Regardless of how the court rules, the values underlying the claims are never explicitly delineated, and so do not get closer to address or resolution. In this essay, we explore incommensurability in political conflicts by examining the ongoing litigation involving the use of presidential power to expand or reduce Bears Ears National Monument.
Source: Rhetoric Society Quarterly
Authors: Brooke Hubsch, Mary E. Stuckey
Institution: Pennsylvania State University
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
OpenAlex ID: W7166523398