front cover of What Process is Due?
What Process is Due?
Courts and Science-Policy Disputes
David M. O'Brien
Russell Sage Foundation, 1987
Are judges competent to decide complex scientific disputes over toxic chemicals and hazardous wastes? Have courts gone too far in awarding damages to victims? Does the judiciary unreasonably constrain free market forces and usurp power from democratically elected branches of government? What constitutes judicial "due process" in the regulation of health-safety and environmental risks? David O'Brien addresses these and other key questions in a comprehensive survey of the role of courts in resolving science-policy disputes. He theorizes that such disputes, with their burden of scientific uncertainty and intense value conflict, become judicialized in the United States because they pose an uncomfortable trilemma for policy makers: how to accommodate competing demands for scientific certainty, political compromise, and procedural fairness in the regulation of risks. When policy negotiations break down, courts are called on not to settle scientific controversies per se, but in their traditional role as independent tribunals for settling value conflicts and imposing norms in a pluralistic society. This interpretation is enhanced by a unique set of case studies, including DES and asbestos litigation and the ban on Tris (a carcinogenic flame-retardent). O'Brien's analytical framework and his detailed examples illuminate the extent, the implications, and the underlying causes of the judicialization of risk regulation.
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front cover of When Courts and Congress Collide
When Courts and Congress Collide
The Struggle for Control of America's Judicial System
Charles Gardner Geyh
University of Michigan Press, 2009
"This is quite simply the best study of judicial independence that I have ever read; it is erudite, historically aware, and politically astute."
---Malcolm M. Feeley, Claire Sanders Clements Dean's Professor, Boalt Hall School of Law, University of California at Berkeley

"Professor Geyh has written a wise and timely book that is informed by the author's broad and deep experience working with the judicial and legislative branches, by the insights of law, history and political science, and by an appreciation of theory and common sense."
---Stephen B. Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School


With Congress threatening to "go nuclear" over judicial appointments, and lawmakers accusing judges of being "arrogant, out of control, and unaccountable," many pundits see a dim future for the autonomy of America's courts. But do we really understand the balance between judicial independence and Congress's desire to limit judicial reach? Charles Geyh's When Courts and Congress Collide is the most sweeping study of this question to date, and an unprecedented analysis of the relationship between Congress and our federal courts.

Efforts to check the power of the courts have come and gone throughout American history, from the Jeffersonian Congress's struggle to undo the work of the Federalists, to FDR's campaign to pack the Supreme Court, to the epic Senate battles over the Bork and Thomas nominations. If legislators were solely concerned with curbing the courts, Geyh suggests, they would use direct means, such as impeaching uncooperative judges, gerrymandering their jurisdictions, stripping the bench's oversight powers, or slashing judicial budgets. Yet, while Congress has long been willing to influence judicial decision-making indirectly by blocking the appointments of ideologically unacceptable nominees, it has, with only rare exceptions, resisted employing more direct methods of control. When Courts and Congress Collide is the first work to demonstrate that this balance is governed by a "dynamic equilibrium": a constant give-and-take between Congress's desire to control the judiciary and its respect for historical norms of judicial independence.

It is this dynamic equilibrium, Geyh says, rather than what the Supreme Court or the Constitution says about the separation of powers, that defines the limits of the judiciary's independence. When Courts and Congress Collide is a groundbreaking work, requiring all of us to consider whether we are on the verge of radically disrupting our historic balance of governance.

Charles Gardner Geyh is Professor of Law and Charles L. Whistler Faculty Fellow at Indiana University at Bloomington. He has served as director of the American Judicature Society's Center for Judicial Independence, reporter to the American Bar Association Commission on Separation of Powers and Judicial Independence, and counsel to the Judiciary Committee of the U.S. House of Representatives.
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front cover of Who Pays for Justice? Perspectives on State Court System Financing and Governance
Who Pays for Justice? Perspectives on State Court System Financing and Governance
Geoffrey McGovern
RAND Corporation, 2014
RAND Corporation researchers surveyed experts from five states that use a variety of approaches to funding state court systems to assess financing, accounting, and governance issues under various systems.
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front cover of Working Law
Working Law
Courts, Corporations, and Symbolic Civil Rights
Lauren B. Edelman
University of Chicago Press, 2016
Since the passage of the Civil Rights Act, virtually all companies have antidiscrimination policies in place. Although these policies represent some progress, women and minorities remain underrepresented within the workplace as a whole and even more so when you look at high-level positions. They also tend to be less well paid. How is it that discrimination remains so prevalent in the American workplace despite the widespread adoption of policies designed to prevent it?

One reason for the limited success of antidiscrimination policies, argues Lauren B. Edelman, is that the law regulating companies is broad and ambiguous, and managers therefore play a critical role in shaping what it means in daily practice. Often, what results are policies and procedures that are largely symbolic and fail to dispel long-standing patterns of discrimination. Even more troubling, these meanings of the law that evolve within companies tend to eventually make their way back into the legal domain, inconspicuously influencing lawyers for both plaintiffs and defendants and even judges. When courts look to the presence of antidiscrimination policies and personnel manuals to infer fair practices and to the presence of diversity training programs without examining whether these policies are effective in combating discrimination and achieving racial and gender diversity, they wind up condoning practices that deviate considerably from the legal ideals.
 
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front cover of Writing as Punishment in Schools, Courts, and Everyday Life
Writing as Punishment in Schools, Courts, and Everyday Life
Spencer Schaffner
University of Alabama Press, 2019
A probing and prescient consideration of writing as an instrument of punishment
 
Writing tends to be characterized as a positive aspect of literacy that helps us to express our thoughts, to foster interpersonal communication, and to archive ideas. However, there is a vast array of evidence that emphasizes the counterbelief that writing has the power to punish, shame, humiliate, control, dehumanize, fetishize, and transform those who are subjected to it. In Writing as Punishment in Schools, Courts, and Everyday Life, Spencer Schaffner looks at many instances of writing as punishment, including forced tattooing, drunk shaming, court-ordered letters of apology, and social media shaming, with the aim of bringing understanding and recognition to the coupling of literacy and subjection.
 
Writing as Punishment in Schools, Courts, and Everyday Life is a fascinating inquiry into how sinister writing can truly be and directly questions the educational ideal that powerful writing is invariably a public good. While Schaffner does look at the darker side of writing, he neither vilifies nor supports the practice of writing as punishment. Rather, he investigates the question with humanistic inquiry and focuses on what can be learned from understanding the many strange ways that writing as punishment is used to accomplish fundamental objectives in everyday life.
 
Through five succinct case studies, we meet teachers, judges, parents, sex traffickers, and drunken partiers who have turned to writing because of its presumed power over writers and readers. Schaffner provides careful analysis of familiar punishments, such as schoolchildren copying lines, and more bizarre public rituals that result in ink-covered bodies and individuals forced to hold signs in public.
 
Schaffner argues that writing-based punishment should not be dismissed as benign or condemned as a misguided perversion of writing, but instead should be understood as an instrument capable of furthering both the aims of justice and degradation.
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