These are some of the questions discussed in this collection of essays, which explores a range of contemporary issues in jurisdictions including the United States, Canada, New Zealand, and the United Kingdom.
Contributors include Justice Antonin Scalia of the United States Supreme Court, Justice Ian Binnie of the Supreme Court of Canada, Justice Eddie Durie of the High Court of New Zealand; James Allan, Andrew Butler, Hilary Charlesworth, Scott Davidson, Elizabeth Evatt, Murray Hunt, Andrew Sharpe, and Jeremy Waldron.
Moving seamlessly across genres and disciplines, Dayan considers legal practices and spiritual beliefs from medieval England, the North American colonies, and the Caribbean that have survived in our legal discourse, and she explores the civil deaths of felons and slaves through lawful repression. Tracing the legacy of slavery in the United States in the structures of the contemporary American prison system and in the administrative detention of ghostly supermax facilities, she also demonstrates how contemporary jurisprudence regarding cruel and unusual punishment prepared the way for abuses in Abu Ghraib and Guantánamo.
Using conventional historical and legal sources to answer unconventional questions, The Law Is a White Dog illuminates stark truths about civil society's ability to marginalize, exclude, and dehumanize.
The Founders created a new cultural climate that gave wings to the human spirit. They built a free-enterprise culture to encourage industry and prosperity. They gave humanity the needed ingredients for a gigantic 5,000-year leap in which more progress has been made in the past 200 years than all of prior recorded human history. All of this came about because of 28 basic principles the Founders discovered, upon which all free nations must be built in order to succeed.
This eBook includes the original index, footnotes, table of contents and page numbering from the printed format, and also new illustrations.
by Alexander Hamilton, James Madison, and John Jay
Originally published anonymously, The Federalist Papers first appeared in 1787 as a series of letters to New York newspapers exhorting voters to ratify the proposed Constitution of the United States. Still hotly debated, and open to often controversial interpretations, the arguments first presented here by three of America’s greatest patriots and political theorists were created during a critical moment in our nation’s history, providing readers with a running ideological commentary on the crucial issues facing a democracy.
Today The Federalist Papers are as important and vital a rallying cry for freedom as ever. This edition features the original eighteenth-century text, with James Madison’s fascinating marginal notations, as well as a complete text of the Constitution.
Drawing on numerous commonsense examples, in addition to his extensive knowledge of Chicago-school economics, David D. Friedman offers a spirited defense of the economic view of law. He clarifies the relationship between law and economics in clear prose that is friendly to students, lawyers, and lay readers without sacrificing the intellectual heft of the ideas presented. Friedman is the ideal spokesman for an approach to law that is controversial not because it overturns the conclusions of traditional legal scholars--it can be used to advocate a surprising variety of political positions, including both sides of such contentious issues as capital punishment--but rather because it alters the very nature of their arguments. For example, rather than viewing landlord-tenant law as a matter of favoring landlords over tenants or tenants over landlords, an economic analysis makes clear that a bad law injures both groups in the long run. And unlike traditional legal doctrines, economics offers a unified approach, one that applies the same fundamental ideas to understand and evaluate legal rules in contract, property, crime, tort, and every other category of law, whether in modern day America or other times and places--and systems of non-legal rules, such as social norms, as well.
This book will undoubtedly raise the discourse on the increasingly important topic of the economics of law, giving both supporters and critics of the economic perspective a place to organize their ideas.
Breaking the Cycles of Hatred represents a unique blend of political and legal theory, one that focuses on the double-edged role of memory in fueling cycles of hatred and maintaining justice and personal integrity. Its centerpiece comprises three penetrating essays by Minow. She argues that innovative legal institutions and practices, such as truth commissions and civil damage actions against groups that sponsor hate, often work better than more conventional criminal proceedings and sanctions. Minow also calls for more sustained attention to the underlying dynamics of violence, the connections between intergroup and intrafamily violence, and the wide range of possible responses to violence beyond criminalization.
A vibrant set of freestanding responses from experts in political theory, psychology, history, and law examines past and potential avenues for breaking cycles of violence and for deepening our capacity to avoid becoming what we hate. The topics include hate crimes and hate-crimes legislation, child sexual abuse and the statute of limitations, and the American kidnapping and internment of Japanese Latin Americans during World War II. Commissioned by Nancy Rosenblum, the essays are by Ross E. Cheit, Marc Galanter, Fredrick C. Harris, Judith Lewis Herman, Carey Jaros, Frederick M. Lawrence, Austin Sarat, Ayelet Shachar, Eric K. Yamamoto, and Iris Marion Young.
In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals.
This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia's ideas about judicial interpretation from varying standpoints. In the spirit of debate, Justice Scalia responds to these critics.
In this second of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on the Constitution's Establishment Clause, which forbids government from favoring one religion over another, or religion over secularism. The author begins with a history of the clause, its underlying principles, and the Supreme Court's main decisions on establishment, and proceeds to consider specific controversies. Taking a contextual approach, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula.
Calling throughout for acknowledgment of the way religion gives meaning to people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare.
We shrug off this fact as an unfortunate reality. America is the land of the free, after all. Does it really matter whether our politicians bend the truth here and there?
When the truth is traded for lies, our freedoms are diminished and don’t return.
In Lies the Government Told You, Judge Andrew P. Napolitano reveals how America’s freedom, as guaranteed by the U.S. Constitution, has been forfeited by a government more protective of its own power than its obligations to preserve our individual liberties.
“Judge Napolitano’s tremendous knowledge of American law, history, and politics, as well as his passion for freedom, shines through in Lies the Government Told You, as he details how throughout American history, politicians and government officials have betrayed the ideals of personal liberty and limited government."
—Congressman Ron Paul, M.D. (R-TX), from the Foreword
Although the book ranges over a variety of traditional topics in federal jurisdiction, the focus is steady on federal judicial administration conceived of as an interdisciplinary approach emphasizing system rather than doctrine, statistics rather than impressions, and caseload rather than cases. Like the earlier edition, this book promises to be a landmark in the empirical study of judicial administration.
Contrary to the frequency claims of excessive leniency on the part of judges that are often asserted by journalists and shapers of opinions, Rossi and Berk find strong correspondence between the median sentences deemed appropriate by the public and the sentences prescribed by the guidelines. Although the authors conclude that the Commission was able to match prescribed punishments closely to the American consensus for most crimes, in one category -- drug trafficking offenses -- the guidelines were much harsher in dealing with offenders.
The national survey used a factorial survey as its design strategy, allowing for analysis of a large variety of federal crimes and variations in the social characteristics of convicted felons. A wealth of detail, along with ample graphic and tabular illustrations, extends the book's application to issues of consensus and variations in punitiveness by region and socioeconomic characteristics of respondents.
From the Trade Paperback edition.
America’s Unwritten Constitution presents a bold new vision of the American constitutional system, one in which proper interpretation of the Constitution rests on the interplay between its written and unwritten manifestations, but in which interpretation does not, and cannot, depend wholly on one form or the other. Neither America’s written Constitution nor its unwritten Constitution stands alone, Amar shows, and with each eye-opening example he develops a deeper, more compelling way of thinking about constitutional law than has ever been put forth before—a methodology that looks past the basic text to reveal the diverse influences, supplements, and possibilities that comprise it.
Constitution 3.0 explores some of the most urgent constitutional questions of the near future. Will privacy become obsolete, for example, in a world where ubiquitous surveillance is becoming the norm? Imagine that Facebook and Google post live feeds from public and private surveillance cameras, allowing 24/7 tracking of any citizen in the world. How can we protect free speech now that Facebook and Google have more power than any king, president, or Supreme Court justice to decide who can speak and who can be heard? How will advanced brain-scan technology affect the constitutional right against self-incrimination? And on a more elemental level, should people have the right to manipulate their genes and design their own babies? Should we be allowed to patent new forms of life that seem virtually human? The constitutional challenges posed by technological progress are wide-ranging, with potential impacts on nearly every aspect of life in America and around the world.
The authors include Jamie Boyle, Duke Law School; Eric Cohen and Robert George, Princeton University; Jack Goldsmith, Harvard Law School; Orin Kerr, George Washington University Law School; Lawrence Lessig, Harvard Law School; Stephen Morse, University of Pennsylvania Law School; John Robertson, University of Texas Law School; Christopher Slobogin, Vanderbilt Law School; O. Carter Snead, Notre Dame Law School; Jeffrey Rosen, George Washington University Law School; Benjamin Wittes, Brookings Institution; Tim Wu, Columbia Law School; and Jonathan Zittrain, Harvard Law School.
From the moment John Roberts, the chief justice of the United States, blundered through the Oath of Office at Barack Obama's inauguration, the relationship between the Supreme Court and the White House has been confrontational. Both men are young, brilliant, charismatic, charming, determined to change the course of the nation—and completely at odds on almost every major constitutional issue. One is radical; one essentially conservative. The surprise is that Obama is the conservative—a believer in incremental change, compromise, and pragmatism over ideology. Roberts—and his allies on the Court—seek to overturn decades of precedent: in short, to undo the ultimate victory FDR achieved in the New Deal.
This ideological war will crescendo during the 2011-2012 term, in which several landmark cases are on the Court's docket—most crucially, a challenge to Obama's controversial health-care legislation. With four new justices joining the Court in just five years, including Obama's appointees Sonia Sotomayor and Elena Kagan, this is a dramatically—and historically—different Supreme Court, playing for the highest of stakes.
No one is better positioned to chronicle this dramatic tale than Jeffrey Toobin, whose prize-winning bestseller The Nine laid bare the inner workings and conflicts of the Court in meticulous and entertaining detail. As the nation prepares to vote for President in 2012, the future of the Supreme Court will also be on the ballot.
• Article, “The (Non)Finality of Supreme Court Opinions,” by Richard J. Lazarus
• Book Review, “The Laws of Capitalism,” by David Singh Grewal
• Note, “Citizens United at Work: How the Landmark Decision Legalized Political Coercion in the Workplace”
• Note, “Data Mining, Dog Sniffs, and the Fourth Amendment”
• Note, “Nonbinding Bondage”
The issue includes In Memoriam contributions about the life, scholarship, and teaching of John H. Mansfield. The contributors are Anthony D'Amato, Robert W. Gordon, Martha Minow, Frederick Schauer, and James A. Sonne.
In addition, the issue features student commentary on Recent Cases and policy papers, including such subjects as internet law and privacy, Fourth Amendment right to deletion, state action and credit card fees, antitrust law and foreign trade, applicability of Seventh Amendment to states and commonwealths, free speech and tour guide licensing in D.C., labor law and sexual harassment claims, and gender crimes in international criminal law. Finally, the issue includes several summaries of Recent Publications.
The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions. This issue of the Review is December 2014, the second issue of academic year 2014-2015 (Volume 128).
We all know this much: the Constitution is neither immutable nor perfect. Amar shows us how the story of this one relatively compact document reflects the story of America more generally. (For example, much of the Constitution, including the glorious-sounding “We the People,” was lifted from existing American legal texts, including early state constitutions.) In short, the Constitution was as much a product of its environment as it was a product of its individual creators’ inspired genius.
Despite the Constitution’s flaws, its role in guiding our republic has been nothing short of amazing. Skillfully placing the document in the context of late-eighteenth-century American politics, America’s Constitution explains, for instance, whether there is anything in the Constitution that is unamendable; the reason America adopted an electoral college; why a president must be at least thirty-five years old; and why–for now, at least–only those citizens who were born under the American flag can become president.
From his unique perspective, Amar also gives us unconventional wisdom about the Constitution and its significance throughout the nation’s history. For one thing, we see that the Constitution has been far more democratic than is conventionally understood. Even though the document was drafted by white landholders, a remarkably large number of citizens (by the standards of 1787) were allowed to vote up or down on it, and the document’s later amendments eventually extended the vote to virtually all Americans.
We also learn that the Founders’ Constitution was far more slavocratic than many would acknowledge: the “three fifths” clause gave the South extra political clout for every slave it owned or acquired. As a result, slaveholding Virginians held the presidency all but four of the Republic’s first thirty-six years, and proslavery forces eventually came to dominate much of the federal government prior to Lincoln’s election.
Ambitious, even-handed, eminently accessible, and often surprising, America’s Constitution is an indispensable work, bound to become a standard reference for any student of history and all citizens of the United States.
Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause; By Jordan M. Barry
From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style; By Karen Knop, Ralf Michaels & Annelise Riles
Fragmentation Nodes: A Study in Financial Innovation, Complexity, and Systemic Risk; By Kathryn Judge
Note: Insurmountable Obstacles: Structural Errors, Procedural Default, and Ineffective Assistance; By Amy Knight Burns
Comment: The Gulf Coast Claims Facility and the Deepwater Horizon Litigation: Judicial Regulation of Private Compensation Schemes; By Colin McDonell
In the ebook edition, all the footnotes, graphs, and tables of contents (including those for individual articles) are fully linked, properly scalable, and functional; the original note numbering is retained. Also, the URLs in notes are active; and the issue is properly formatted.
This issue of The Yale Law Journal (the 4th issue of Volume 121, academic year 2011-2012) features articles and essays by several notable scholars. Principal contributors include Louis Kaplow (on burdens of proof and their justifications), Richard Schragger (on democracy and debt), and Anna Gelpern (on quasi-sovereign bankruptcy).
The issue also features student contributions on guilty plea colloquys for immigrants and others, and on voting rights' historical lessons from the school re-segregation cases.
This is the book you want to keep with you at all times: the full text of the Declaration of Independence and the Constitution, the two documents that are the backbone of United States government. Reading them as they were written is a must for every American. Regular reading is required for any historian or member of the legal profession, and a good idea for all Americans.
Acclaimed Constitutional scholar Paul Skousen, author of How to Read the Constitution, frames this simple text with a brief preface and a summary of important facts about these two documents, including important dates, for the ultimate quick reference. Throughout the text of the Constitution, he provides a clear guide to parts that became invalid due to later amendments, making the current meaning clear. Without intruding on the meaning, Skousen gives you a great tool for understanding our most basic principles of good government. An inspiring introduction by New York Times best-selling author Dan Clark will put you in the right frame of mind to read and appreciate these great documents.
This handy guide can become your best friend, and you'll want to keep a copy nearby. Fortunately, this little book will easily fit into your pocket or briefcase, top desk drawer, or iPad case. You'll may find you want to have extra copies around to hand out, too. Here is your chance to become an expert on two of the most important documents that shaped our country!
Kotiswaran conducted in-depth fieldwork among sex workers in Sonagachi, Kolkata's largest red-light area, and Tirupati, a temple town in southern India. Providing new insights into the lives of these women--many of whom are demanding the respect and legal protection that other workers get--Kotiswaran builds a persuasive theoretical case for recognizing these women's sexual labor. Moving beyond standard feminist discourse on prostitution, she draws on a critical genealogy of materialist feminism for its sophisticated vocabulary of female reproductive and sexual labor, and uses a legal realist approach to show why criminalization cannot succeed amid the informal social networks and economic structures of sex markets. Based on this, Kotiswaran assesses the law's redistributive potential by analyzing the possible economic consequences of partial decriminalization, complete decriminalization, and legalization. She concludes with a theory of sex work from a postcolonial materialist feminist perspective.
* Article, "The Interpretation-Construction Distinction in Patent Law," by Tun-Jen Chiang & Lawrence B. Solum
* Article, "Agencies as Litigation Gatekeepers," by David Freeman Engstrom
* Essay,"Tops, Bottoms, and Versatiles: What Straight Views of Penetrative Preferences Could Mean for Sexuality Claims Under Price Waterhouse," by Ian Ayres & Richard Luedeman
* Review, "Why Protect Religious Freedom?," by Michael W. McConnell
* Note, "The Case for Tax: A Comparative Approach to Innovation Policy," by Shaun P. Mahaffy
Quality ebook formatting includes fully linked footnotes, active Table of Contents (including linked Contents for individual articles), active URLs in notes, and properly presented tables and graphs throughout.
In this expanded edition of Kindly Inquisitors, a new foreword by George F. Will strikingly shows the book’s continued relevance, while a substantial new afterword by Rauch elaborates upon his original argument and brings it fully up to date. Two decades after the book’s initial publication, while some progress has been made, the regulation of hate speech has grown domestically—especially in American universities—and has spread even more internationally, where there is no First Amendment to serve as a meaningful check. But the answer to bias and prejudice, Rauch argues, is pluralism—not purism. Rather than attempting to legislate bias and prejudice out of existence or to drive them underground, we must pit them against one another to foster a more vigorous and fruitful discussion. It is this process that has been responsible for the growing acceptance of the moral acceptability of homosexuality over the last twenty years. And it is this process, Rauch argues, that will enable us as a society to replace hate with knowledge, both ethical and empirical.
“It is a melancholy fact that this elegant book, which is slender and sharp as a stiletto, is needed, now even more than two decades ago. Armed with it, readers can slice through the pernicious ideas that are producing the still-thickening thicket of rules, codes, and regulations restricting freedom of thought and expression.”—George F. Will, from the foreword