Losing Twice: Harms of Indifference in the Supreme Court

Emily M. Calhoun

apr 2011 · Oxford University Press

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Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Given our adversarial system, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. In Losing Twice, Emily Calhoun draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, Calhoun contends, the role of judges needs to be reconceptualized. She contends that the Court should not perceive itself simply as an adversarial forum, but also as a 'transactional' one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss. Filled with lucid discussions of well known cases, Losing Twice offers an intellectually powerful argument for transforming the decision-making process in Constitutional rights disputes.

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Emily M. Calhoun is Professor of Law and the University of Colorado Law School. She has devoted her career to empowering and protecting the rights of individuals, was a civil rights attorney with the Southern Regional Office of the American Civil Liberties Union in the early 1970s, worked as a university administrator to ensure equality for faculty and students, served on the Board of Directors of the Colorado ACLU and the Boulder County Safehouse for battered women, and was a member of the University of Colorado's Privilege and Tenure Committee hearing faculty grievances affecting academic privileges and freedom. Calhoun currently serves as a mediator of academic freedom disputes for the University of Colorado system; teaches and writes in the area of civil liberties litigation, civil rights legislation, and federal jurisdiction; and consults with organizations and attorneys on constitutional rights issues.