For the most part, competition policy literature has focused on large economies. Yet the economic paradigms on which such policies are based do not necessarily apply to small market economies. This book demonstrates that optimal competition policy is very much dependent on the size of an economy. Whether and how firms compete is a matter of the natural conditions of the markets in which firms operate. A critical feature of small economies is the concentrated nature of many of their markets, which are often protected by high entry barriers. Competition policy must be designed to deal effectively with these unique obstacles to competition. Accordingly, applying the same competition policy to all economies alike may be contrary to the policy's goals.
Michal Gal's thorough analysis shows the effects of market size on competition policy, ranging from rules of thumb to more general policy prescriptions, such as goals and remedial tools. Competition policy in small economies is becoming increasingly important, since the number of small jurisdictions adopting such policy is rapidly growing. Gal's focus extends beyond domestic competition policy to the evaluation of the current trend toward the worldwide harmonization of policies. This book will provide important guidance to academics, policy makers, and practitioners of competition policy as well as to anyone interested in the globalization of competition laws.
The Complete Anti-Federalist, first published in 1981, contains an unprecedented collection of all the significant pamphlets, newspaper articles and letters, essays, and speeches that were written in opposition to the Constitution during the ratification debate. Storing’s work includes introductions to each entry, along with his own consideration of the Anti-Federalist thought.
This new three-volume set includes all the contents of the original seven-volume publication in a convenient, manageable format.
“A work of magnificent scholarship. Publication of these volumes is a civic event of enduring importance.”—Leonard W. Levy, New York Times Book Review
This ground-breaking rhetorical analysis examines a 1987 Massachusetts law affecting infertility treatment and the cultural context that makes such a law possible
Elizabeth C. Britt uses a Massachusetts statute requiring insurance coverage for infertility as a lens through which the work of rhetoric in complex cultural processes can be better understood. Countering the commonsensical notion that mandatory insurance coverage functions primarily to relieve the problem of infertility, Britt argues instead that the coverage serves to expose its contours.
Britt finds that the mandate, operating as a technology of normalization, helps to identify the abnormal (the infertile) and to create procedures by which the abnormal can be subjected to reform. In its role in normalizing processes, the mandate is more successful when it sustains, rather than resolves, the distinction between the normal and the abnormal. This distinction is achieved in part by the rhetorical mechanism of the double bind. For the middle-class white women who are primarily served by the mandate, these double binds are created both by the desire for success, control, and order and by adherence to medical models that often frustrate these same desires. The resulting double binds help to create and sustain the tension between fertility and infertility, order and discontinuity, control and chaos, success and failure, tensions that are essential for the process of normalization to continue.
Britt uses extensive interviews with women undergoing fertility treatments to provide the foundation for her detailed analysis. While her study focuses on the example of infertility, it is also more broadly a commentary on the power of definition to frame experience, on the burdens and responsibilities of belonging to social collectives, and on the ability of rhetorical criticism to interrogate cultural formations.
Winner of the John Hope Franklin Prize
A Moyers & Company Best Book of the Year
“[A] brilliant work that tells us how directly the past has formed us.”
—Darryl Pinckney, New York Review of Books
Lynch mobs, chain gangs, and popular views of black southern criminals that defined the Jim Crow South are well known. We know less about the role of the urban North in shaping views of race and crime in American society.
Following the 1890 census, the first to measure the generation of African Americans born after slavery, crime statistics, new migration and immigration trends, and symbolic references to America as the promised land of opportunity were woven into a cautionary tale about the exceptional threat black people posed to modern urban society. Excessive arrest rates and overrepresentation in northern prisons were seen by many whites—liberals and conservatives, northerners and southerners—as indisputable proof of blacks’ inferiority. In the heyday of “separate but equal,” what else but pathology could explain black failure in the “land of opportunity”?
The idea of black criminality was crucial to the making of modern urban America, as were African Americans’ own ideas about race and crime. Chronicling the emergence of deeply embedded notions of black people as a dangerous race of criminals by explicit contrast to working-class whites and European immigrants, Khalil Gibran Muhammad reveals the influence such ideas have had on urban development and social policies.
Winner of the John Hope Franklin Prize
A Moyers & Company Best Book of the Year
“A brilliant work that tells us how directly the past has formed us.”
—Darryl Pinckney, New York Review of Books
How did we come to think of race as synonymous with crime? A brilliant and deeply disturbing biography of the idea of black criminality in the making of modern urban America, The Condemnation of Blackness reveals the influence this pernicious myth, rooted in crime statistics, has had on our society and our sense of self. Black crime statistics have shaped debates about everything from public education to policing to presidential elections, fueling racism and justifying inequality. How was this statistical link between blackness and criminality initially forged? Why was the same link not made for whites? In the age of Black Lives Matter and Donald Trump, under the shadow of Ferguson and Baltimore, no questions could be more urgent.
“The role of social-science research in creating the myth of black criminality is the focus of this seminal work…[It] shows how progressive reformers, academics, and policy-makers subscribed to a ‘statistical discourse’ about black crime…one that shifted blame onto black people for their disproportionate incarceration and continues to sustain gross racial disparities in American law enforcement and criminal justice.”
—Elizabeth Hinton, The Nation
“Muhammad identifies two different responses to crime among African-Americans in the post–Civil War years, both of which are still with us: in the South, there was vigilantism; in the North, there was an increased police presence. This was not the case when it came to white European-immigrant groups that were also being demonized for supposedly containing large criminal elements.”
—New Yorker
Ranging over a wide array of cases, Andrew Stark draws on legal, moral, and political thought--as well as the rhetoric of officeholders and the commentary of journalists--to analyze several decades of debate over conflict of interest in American public life. He offers new ways of interpreting the controversies about conflict of interest, explains their prominence in American political combat, and suggests how we might make them less venomous and intractable.
Stark shows that over the past forty years public opinion has shifted steadily toward an objective conception of conflict: instead of considering case-by-case motivations, we have adopted broadly prophylactic rules barring a variety of circumstances with no regard for whether individuals facing those circumstances would be moved in culpable ways. At the same time, we have shifted toward a subjective conception of interest: where we once focused narrowly on money, we now inquire into various commitments individuals might pursue in ways that could impair their judgment.
In exploring the consequences of these twin migrations--the passage of "conflict" from a subjective to an objective understanding; the transformation of "interest" from an objective to a subjective conception--the author aims to make our debates over public ethics less vexatious for officials, and more lucid for citizens.
George W. Jarecke and Nancy K. Plant present a selection of cases across a broad spectrum of American law to demonstrate that our society relies inappropriately on the legal system to cure ills the system was not designed to address.
Jarecke and Plant note that while we in the United States worry considerably about the problem of individual assumption of responsibility—whether for personal mistakes, financial setbacks, or pure bad luck—we appear uneasy about the concept and unclear about what it means on a daily basis. Not only are we incapable of accepting personal responsibility; we barely know what it means to do so.
Mistakenly, we turn to the legal system to solve this dilemma. Yet our laws as our legislators write them, as judges interpret them, as lawyers argue them, and as juries apply them send mixed messages about whether and how we should exercise personal responsibility.
Each chapter of Confounded Expectations features one main case to explain one legal theory, with other cases noted as examples of facets of each theory. To demonstrate the law that requires merchants to guarantee the quality of their products, for example, Jarecke and Plant discuss the case of the band mothers whose fund-raising luncheon menu included turkey salad contaminated by salmonella. Peripheral cases include a horse falsely sold as a gelding, a riding mower that tipped over when used as instructed, makeup that was guaranteed to be safe but caused a rash, and pigs sick with hog cholera.
The first author to address the impact of geopolitics on the courts’ representation of Nazi euthanasia, Bryant argues that international power relationships wreaked havoc on the prosecutions.
Drawing on primary sources, this provocative investigation of the Nazi campaign against the mentally ill and the postwar quest for justice will interest general readers and provide critical information for scholars of Holocaust studies, legal history, and human rights. Support for this publication was generously provided by the Eugene M. Kayden Fund at the University of Colorado.
Several contributors offer wide-ranging accounts of the workings of Congress. They look at lawmakers’ attitudes toward Congress’s role as a constitutional interpreter, the offices within Congress that help lawmakers learn about constitutional issues, Congress’s willingness to use its confirmation power to shape constitutional decisions by both the executive and the courts, and the frequency with which congressional committees take constitutional questions into account. Other contributors address congressional deliberation, paying particular attention to whether Congress’s constitutional interpretations are sound. Still others examine how Congress and the courts should respond to one another’s decisions, suggesting how the courts should evaluate Congress’s work and considering how lawmakers respond to Court decisions that strike down federal legislation. While some essayists are inclined to evaluate Congress’s constitutional interpretation positively, others argue that it could be improved and suggest institutional and procedural reforms toward that end. Whatever their conclusions, all of the essays underscore the pervasive and crucial role that Congress plays in shaping the meaning of the Constitution.
Contributors. David P. Currie, Neal Devins, William N. Eskridge Jr.. John Ferejohn, Louis Fisher, Elizabeth Garrett, Michael J. Gerhardt, Michael J. Klarman, Bruce G. Peabody, J. Mitchell Pickerill, Barbara Sinclair, Mark Tushnet, Adrian Vermeule, Keith E. Whittington, John C. Yoo
During the long decade from 1848 to 1861 America was like a train speeding down the track, without an engineer or brakes. The new territories acquired from Mexico had vastly increased the size of the nation, but debate over their status—and more importantly the status of slavery within them—paralyzed the nation. Southerners gained access to the territories and a draconian fugitive slave law in the Compromise of 1850, but this only exacerbated sectional tensions. Virtually all northerners, even those who supported the law because they believed that it would preserve the union, despised being turned into slave catchers. In 1854, in the Kansas-Nebraska Act, Congress repealed the ban on slavery in the remaining unorganized territories. In 1857, in the Dred Scott case, the Supreme Court held that all bans on slavery in the territories were unconstitutional. Meanwhile, northern whites, free blacks, and fugitive slaves resisted the enforcement of the 1850 fugitive slave law. In Congress members carried weapons and Representative Preston Brooks assaulted Senator Charles Sumner with a cane, nearly killing him. This was the decade of the 1850s and these were the issues Congress grappled with.
This volume of new essays examines many of these issues, helping us better understand the failure of political leadership in the decade that led to the Civil War.
Contributors
Spencer R. Crew
Paul Finkelman
Matthew Glassman
Amy S. Greenberg
Martin J. Hershock
Michael F. Holt
Brooks D. Simpson
Jenny Wahl
Both the U.S. Supreme Court and the Congressional Black Caucus (CBC) claim to advocate minority political interests, yet they disagree over the intent and scope of the Voting Rights Act (VRA), as well as the interpretation of the equal protection clause of the 14th Amendment. Whereas the Court promotes color-blind policies, the CBC advocates race-based remedies. Setting this debate in the context of the history of black political thought, Rivers examines a series of high-profile districting cases, from Rodgers v. Lodge (1982) through NAMUDNO v. Holder (2009). She evaluates the competing approaches to racial equality and concludes, surprisingly, that an originalist, race-conscious interpretation of the 14th Amendment, along with a revised states' rights position regarding electoral districting, may better serve minority political interests.
The Conscience of the Court celebrates the work of Justice William J. Brennan Jr., who served on the United States Supreme Court for thirty-four years (1956–1990).
Stephen L. Sepinuck and Mary Pat Treuthart introduce and present selected judicial opinions written by Justice Brennan on issues involving personal freedom, civil liberties, and equality. Brennan is ranked by many as the best writer ever to have served on the Supreme Court, and his written opinions depict real people, often in desperate, emotional situations. Remarkable for their clarity of analysis, for their eloquence, and for their forcefulness and persuasiveness, his opinions demonstrate that judicial thought need not be a proprietary enclave of lawyers or the intellectual elite.
The extended excerpts selected by Sepinuck and Treuthart highlight Brennan's approach to judicial decision making. Concerned always with how each decision would actually affect people's lives, Brennan possessed a rare quality of empathy. In Brennan, the editors note, "people and groups who lacked influence in society—Communists and flag burners, children and foreigners, criminal defendants and racial minorities"—found a champion they could count on "to listen to their causes and judge them unmoved by the passions of the politically powerful."
In their introduction to each opinion, the editors provide background facts, discuss how the excerpted opinion transformed the law or otherwise fit into the realm of constitutional jurisprudence, and delve into Justice Brennan's judicial philosophy, his method of constitutional interpretation, and the language he used.
In 1969, the Chicago Seven were charged with intent to "incite, organize, promote, and encourage" antiwar riots during the chaotic 1968 Democratic National Convention in Chicago. The defendants included major figures of the antiwar and racial justice movements: Abbie Hoffman and Jerry Rubin, the madcap founders of the Yippies; Tom Hayden and Rennie Davis, founders of Students for a Democratic Society and longtime antiwar organizers; David Dellinger, a pacifist and chair of the National Mobilization Committee to End the War in Vietnam; and Bobby Seale, co-founder of the Black Panther Party, who would be bound and gagged in the courtroom before his case was severed from the rest.
The Conspiracy Trial of the Chicago Seven is an electrifying account of the months-long trial that commanded the attention of a divided nation. John Schultz, on assignment for The Evergreen Review, witnessed the whole trial of the Chicago Seven, from the jury selection to the aftermath of the verdict. In his vivid account, Schultz exposes the raw emotions, surreal testimony, and judicial prejudice that came to define one of the most significant legal events in American history.
In October 2020, Aaron Sorkin's film, The Trial of the Chicago Seven, will bring this iconic trial to the screen.
In a powerful new narrative, G. Edward White challenges the reigning understanding of twentieth-century Supreme Court decisions, particularly in the New Deal period. He does this by rejecting such misleading characterizations as "liberal," "conservative," and "reactionary," and by reexamining several key topics in constitutional law.
Through a close reading of sources and analysis of the minds and sensibilities of a wide array of justices, including Holmes, Brandeis, Sutherland, Butler, Van Devanter, and McReynolds, White rediscovers the world of early-twentieth-century constitutional law and jurisprudence. He provides a counter-story to that of the triumphalist New Dealers. The deep conflicts over constitutional ideas that took place in the first half of the twentieth century are sensitively recovered, and the morality play of good liberals vs. mossbacks is replaced. This is the only thoroughly researched and fully realized history of the constitutional thought and practice of all the Supreme Court justices during the turbulent period that made America modern.
This acclaimed series serves as a biography of the U.S. Constitution, offering an indispensable survey of the congressional history behind its development. In a rare examination of the role that both the legislative and executive branches have played in the development of constitutional interpretation, The Constitution in Congress shows how the actions and proceedings of these branches reveal perhaps even more about constitutional disputes than Supreme Court decisions of the time.
The centerpiece for the fourth volume in this series is the great debate over slavery and how this divisive issue led the country into the maelstrom of the Civil War. From the Jacksonian revolution of 1829 to the secession of Southern states from the Union, legal scholar David P. Currie provides an unrivaled analysis of the significant constitutional events—the Wilmot Proviso, the Compromise of 1850, the Kansas-Nebraska Act, the Lincoln-Douglas Debates, and "Bleeding Kansas"—that led up to the war. Exploring how slavery was addressed in presidential speeches and debated in Congress, Currie shows how the Southern Democrats dangerously diminished federal authority and expanded states' rights, threatening the nation's very survival.
Like its predecessors, this fourth volume of The Constitution in Congress will be an invaluable reference for legal scholars and constitutional historians alike.
Some of the essays are broad in scope, reflecting on national character, patriotism, and political theory; exploring whether war and republican government are compatible; and considering in what sense we can be said to be in wartime circumstances today. Others are more specific, examining the roles of Congress, the presidency, the courts, and the international legal community. Throughout the collection, balanced, unbiased analysis leads to some surprising conclusions, one of which is that wartime conditions have sometimes increased, rather than curtailed, civil rights and civil liberties. For instance, during the cold war, government officials regarded measures aimed at expanding African Americans’ freedom at home as crucial to improving America’s image abroad.
Contributors. Sotirios Barber, Mark Brandon, James E. Fleming, Mark Graber, Samuel Issacharoff, David Luban, Richard H. Pildes, Eric Posner, Peter Spiro, William Michael Treanor, Mark Tushnet, Adrian Vermeule
In recognition of the bicentennial of the Constitution of the United States, former chief justice Warren E. Burger, Justice Antonin Scalia, ACLU president Norman Dorsen, and others delivered papers at the first annual DeWitt Wallace Conference on the Liberal Arts, held at Macalester College, St. Paul.
Joining some of the best legal minds in America were novelist John Edgar Wideman, chemist Harry B. Gray, historian Mary Beth Norton, and psychiatrist and social psychologist Robert Jay Lifton.
Opening the conference and this book, former chief Justice Burger emphasizes the daring of those who drafted the Constitution. Justice Scalia, noting the great reduction in curbs to freedom of expression since World War I, points out that the proliferation of freedom has forced courts to distinguish between types of expression.
Although the views expressed in these essays differ widely, opinion concerning the major issue falls into two definite camps: Burger, Scalia, and Dorsen contend that freedom of expression depends on the legal structure for survival; Wideman, Gray, Lifton, and Norton maintain that social forces determine freedom of expression.
Constitutional Choices illuminates the world of scholarship and advocacy uniquely combined by Laurence Tribe, one of the nation’s leading professors of constitutional law and most successful practitioners before the Supreme Court. In his new hook, Tribe boldly moves beyond the seemingly endless debate over which judicial approaches to enforcing the Constitution are “legitimate” and which are not. Arguing that all claims to legitimacy must remain suspect, Tribe focuses instead on the choices that must nonetheless be made in resolving actual constitutional controversies. To do so, he examines problems as diverse as interstate banking, gender discrimination, church subsidies, the constitutional amendment process, the war powers of the President, and First Amendment protection of American Nazis.
Challenging the ruling premises underlying many of the Supreme Court’s positions on fundamental issues of government authority and individual rights, Tribe shows how the Court is increasingly coming to resemble a judicial Office of Management and Budget, straining constitutional discourse through a managerial sieve and defending its constitutional rulings by “balancing” what it counts as “costs” against what it deems “benefits.” Tribe explains how the Court’s “Calculus” systematically excludes basic concerns about the distribution of wealth and power and conceals fundamental choices about the American polity. Calling for a more candid confrontation of those choices and of the principles and perspectives they reflect, Tribe exposes what has gone wrong and suggests how the Court can begin to reclaim the historic role entrusted to it by the Constitution.
This book argues that the Constitution has a dual nature. The first aspect, on which legal scholars have focused, is the degree to which the Constitution acts as a binding set of rules that can be neutrally interpreted and externally enforced by the courts against government actors. This is the process of constitutional interpretation. But according to Keith Whittington, the Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. Whittington characterizes this process, by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution, as one of construction as opposed to interpretation.
Whittington goes on to argue that ambiguities in the constitutional text and changes in the political situation push political actors to construct their own constitutional understanding. The construction of constitutional meaning is a necessary part of the political process and a regular part of our nation's history, how a democracy lives with a written constitution. The Constitution both binds and empowers government officials. Whittington develops his argument through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency.
Americans have a love-hate relationship with government. Rejecting bureaucracy—but not the goods and services the welfare state provides—Americans have demanded that government be made to run like a business. Hence today’s privatization revolution.
But as Jon D. Michaels shows, separating the state from its public servants, practices, and institutions does violence to our Constitution, and threatens the health and stability of the Republic. Constitutional Coup puts forward a legal theory that explains the modern welfare state as a worthy successor to the framers’ three-branch government.
What legitimates the welfare state is its recommitment to a rivalrous system of separation of powers, in which political agency heads, career civil servants, and the public writ large reprise and restage the same battles long fought among Congress, the president, and the courts. Privatization now proclaims itself as another worthy successor, this time to an administrative state that Americans have grown weary of. Yet it is a constitutional usurper. Privatization dismantles those commitments to separating and checking state power by sidelining rivalrous civil servants and public participants.
Constitutional Coup cements the constitutionality of the administrative state, recognizing civil servants and public participants as necessary—rather than disposable—components. Casting privatization as an existential constitutional threat, it underscores how the fusion of politics and profits commercializes government—and consolidates state power in ways both the framers and administrative lawyers endeavored to disaggregate. It urges—and sketches the outlines of—a twenty-first-century bureaucratic renaissance.
Pickerill combines legislative histories, extensive empirical findings, and interviews with current and former members of Congress, congressional staff, and others. He examines data related to all of the federal legislation struck down by the Supreme Court from the beginning of the Warren Court in 1953 through the 1996–97 term of the Rehnquist Court. By looking at the legislative histories of Congressional acts that invoked the Commerce Clause and presented Tenth Amendment conflicts—such as the Child Labor Act (1916), the Civil Rights Act (1965), the Gun-Free School Zones Act (1990), and the Brady Bill (1994)—Pickerill illuminates how Congressional deliberation over newly proposed legislation is shaped by the possibility of judicial review. The Court’s invalidation of the Gun-Free School Zones Act in its 1995 ruling United States v. Lopez signaled an increased judicial activism regarding issues of federalism. Pickerill examines that case and compares congressional debate over constitutional issues in key pieces of legislation that preceded and followed it: the Violence Against Women Act of 1994 and the Hate Crimes Prevention Act of 1997. He shows that Congressional attention to federalism increased in the 1990s along with the Court’s greater scrutiny.
In a series of remarkable forays, Robert Post develops an original account of how law functions in a democratic society. His work offers a radically new perspective on some of the most pressing constitutional issues of our day, such as the regulation of racist speech, pornography, and privacy.
Drawing on work in sociology, philosophy, and political theory, Post demonstrates that the law establishes distinct and competing forms of social order: democracy, in which the law embodies the possibilities of collective self-determination; community, in which the law articulates and enforces a common social identity; and management, in which the law creates the conditions for accomplishing specific goals. Debates over the boundaries between these distinct domains, Post argues, are central to some of the most intractable problems of modern constitutional law. Here we see, for instance, how the controversy over the regulation of racist speech negotiates the boundary between communitarian and democratic forms of social ordering. We see how public forum doctrine, a crucial but notoriously mysterious component of First Amendment jurisprudence, arbitrates distinctions between the social domains of democracy and management. Taking up specific court cases, such as that against Hustler magazine and that allowing prayers before state legislatures, Post shows us what is actually at stake in these constitutional struggles.
A highly complex and sophisticated account of the operation of constitutional law in modern society, Constitutional Domains is essential reading for lawyers, social theorists, and makers of public policy.
Kennedy reveals how Schmitt’s argument for a strong but neutral state supported the maximization of market freedom at the cost of the political constitution. She argues that the major fault lines of Weimar liberalism—emergency powers, the courts as “defenders of the constitution,” mass mobilization of anti-liberal politics, ethnic-identity politics, a culture of resentment and contested legitimacy—are not exceptions within the liberal-democratic orders of the West, but central to them. Contending that Schmitt’s thought remains vital today because liberal norms are inadequate to the political challenges facing constitutional systems as diverse as those of Eastern Europe and the United States, Kennedy develops a compelling, rigorous argument that unsettles many assumptions about liberalism, democracy, and dictatorship.
Designed for use in courses, this abridged edition of the four-volume Constitutional History of the American Revolution demonstrates how significant constitutional disputes were in instigating the American Revolution. John Phillip Reid addresses the central constitutional issues that divided the American colonists from their English legislators: the authority to tax, the authority to legislate, the security of rights, the nature of law, the foundation of constitutional government in custom and contractarian theory, and the search for a constitutional settlement. Reid's distinctive analysis discusses the irreconcilable nature of this conflict—irreconcilable not because leaders in politics on both sides did not desire a solution, but because the dynamics of constitutional law impeded a solution that permitted the colonies to remain part of the dominions of George III.
Constitutional History of the American Revolution
Volume I: The Authority of Rights
Volume II: The Authority to Tax
Volume III: The Authority to Legislate
Volume IV: The Authority of Law
John Phillip Reid addresses the central constitutional issues that divided the American colonists from their English legislators: the authority to tax, the authority to legislate, the security of rights, the nature of law, the foundation of constitutional government in custom and contractarian theory, and the search for a constitutional settlement.
This is the first comprehensive study of the constitutionality of the Parliamentary legislation cited by the American Continental Congress as a justification for its rebellion against Great Britain in 1776. The content and purpose of that legislation is well known to historians, but here Reid places it in the context of eighteenth-century constitutional doctrine and discusses its legality in terms of the intellectual premises of eighteenth-century Anglo-American legal values.
The third installment in a planned four-volume work, The Authority to Legislate follows The Authority to Tax and The Authority of Rights. In this volume, Reid shows that the inflexibility of British constitutional principle left no room for settlement or change; Parliament became entrapped by the imperatives of the constitution it was struggling to preserve. He analyzes the legal theories put forward in support of Parliament’s authority to legislate and the specific precedents cited as evidence of that authority.
Reid’s examination of both the debate over the authority to legislate and the constitutional theory underlying the debate shows the extent to which the American Revolution and the Declaration of Independence were actions taken in defense of the rule of law. Considered as a whole, Reid’s Constitutional History of the American Revolution contributes to an understanding of the central role of legal and constitutional standards, especially concern for rule by law, in the development of the American nation.
This is the first comprehensive study of the constitutionality of the Parliamentary legislation cited by the American Continental Congress as a justification for its rebellion against Great Britain in 1776. The content and purpose of that legislation is well known to historians, but here John Phillip Reid places it in the context of eighteenth-century constitutional doctrine and discusses its legality in terms of the intellectual premises of eighteenth-century Anglo-American legal values.
The Authority of Law is the last of a four-volume work, preceded by The Authority to Tax, The Authority of Rights, and The Authority to Legislate. In these previous volumes, Reid argued that there would have been no rebellion had taxation been the only constitutional topic of controversy, that issues of rights actually played a larger role in the drafting of state and federal constitutions than they did in instigating a rebellion, and that the American colonists finally took to the battlefield against the British because of statutes that forced Americans to either concede the authority to legislate or leave the empire.
Expanding on the evidence presented in the first three volumes, The Authority of Law determines the constitutional issues dividing American whigs from British imperialists. Reid summarizes these issues as “the supremacy issue,” “the Glorious Revolution issue,” “the liberty issue,” and the “representation issue.” He then raises a compelling question: why, with so many outstanding lawyers participating in the debate, did no one devise a constitutionally legal way out of the standoff? Reid makes an original suggestion. No constitutional solution was found because the British were more threatened by American legal theory than the Americans were by British theory. British lawyers saw the future of liberty in Great Britain endangered by the American version of constitutional law.
Considered as a whole, Reid’s Constitutional History of the American Revolution contributes to an understanding of the central role of legal and constitutional standards, especially concern for rule by law, in the development of the American nation.
In Constitutional Identity, Gary Jeffrey Jacobsohn argues that a constitution acquires an identity through experience—from a mix of the political aspirations and commitments that express a nation’s past and the desire to transcend that past. It is changeable but resistant to its own destruction, and manifests itself in various ways, as Jacobsohn shows in examples as far flung as India, Ireland, Israel, and the United States.
Jacobsohn argues that the presence of disharmony—both the tensions within a constitutional order and those that exist between a constitutional document and the society it seeks to regulate—is critical to understanding the theory and dynamics of constitutional identity. He explores constitutional identity’s great practical importance for some of constitutionalism’s most vexing questions: Is an unconstitutional constitution possible? Is the judicial practice of using foreign sources to resolve domestic legal disputes a threat to vital constitutional interests? How are the competing demands of transformation and preservation in constitutional evolution to be balanced?
Compared to previous editions of The Constitutional Jurisprudence of the Federal Republic of Germany, this third edition more closely tracks Germany's Basic Law and, therefore, the systematic approach reflected in the most-respected German constitutional law commentaries. Entirely new chapters address the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that have emerged from Reunification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germany's counterterrorism efforts and its constitutional guarantees of liberty. Kommers and Miller have also updated existing chapters to address recent decisions involving human rights, federalism, European integration, and religious liberty.
Americans are increasingly ruled by an unwritten constitution consisting of executive orders, signing statements, and other forms of quasi-law that lack the predictability and consistency essential for the legal system to function properly. As a result, the U.S. Constitution no longer means what it says to the people it is supposed to govern, and the government no longer acts according to the rule of law. These developments can be traced back to a change in “constitutional morality,” Bruce Frohnen and George Carey argue in this challenging book.
The principle of separation of powers among co-equal branches of government formed the cornerstone of America’s original constitutional morality. But toward the end of the nineteenth century, Progressives began to attack this bedrock principle, believing that it impeded government from “doing the people’s business.” The regime of mixed powers, delegation, and expansive legal interpretation they instituted rejected the ideals of limited government that had given birth to the Constitution. Instead, Progressives promoted a governmental model rooted in French revolutionary claims. They replaced a Constitution designed to mediate among society’s different geographic and socioeconomic groups with a body of quasi-laws commanding the democratic reformation of society.
Pursuit of this Progressive vision has become ingrained in American legal and political culture—at the cost, according to Frohnen and Carey, of the constitutional safeguards that preserve the rule of law.
Political constitutions, hammered out by imperfect human beings in periods of intense political controversy, are always compromises with injustice. What makes the U.S. Constitution legitimate, argues this daring book, is Americans’ enduring faith that the Constitution’s promises can someday be redeemed, and the constitutional system be made “a more perfect union.”
A leading constitutional theorist, Balkin argues eloquently that the American constitutional project is based in faith, hope, and a narrative of shared redemption. Our belief that the Constitution will deliver us from evil shows in the stories we tell one another about where our country came from and where it is headed, and in the way we use these historical touchstones to justify our fervent (and opposed) political creeds. Because Americans have believed in a story of constitutional redemption, we have assumed the right to decide for ourselves what the Constitution means, and have worked to persuade others to set it on the right path. As a result, constitutional principles have often shifted dramatically over time. They are, in fact, often political compromises in disguise.
What will such a Constitution become? We cannot know. But our belief in the legitimacy of the Constitution requires a leap of faith—a gamble on the ultimate vindication of a political project that has already survived many follies and near-catastrophes, and whose destiny is still over the horizon.
Most of us regard the Constitution as the foundation of American democracy. How, then, are we to understand the restrictions that it imposes on legislatures and voters? Why, for example, does the Constitution allow unelected judges to exercise so much power? And why is this centuries-old document so difficult to amend? In short, how can we call ourselves a democracy when we are bound by an entrenched, and sometimes counter-majoritarian, constitution?
In Constitutional Self-Government, Christopher Eisgruber focuses directly on the Constitution's seemingly undemocratic features. Whereas other scholars have tried to reconcile these features with majority rule, or simply acknowledged them as necessary limits on democracy, Eisgruber argues that constitutionalism is best regarded not as a constraint upon self-government, but as a crucial ingredient in a complex, non-majoritarian form of democracy. In an original and provocative argument, he contends that legislatures and elections provide only an incomplete representation of the people, and he claims that the Supreme Court should be regarded as another of the institutions able to speak for Americans about justice. At a pivotal moment of worldwide interest in judicial review and renewed national controversy over the Supreme Court's role in politics, Constitutional Self-Government ingeniously locates the Constitution's value in its capacity to sustain an array of institutions that render self-government meaningful for a large and diverse people.
At the intersection of two sweeping global trends—the rise of popular support for principles of theocratic governance and the spread of constitutionalism and judicial review—a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as “a” or “the” source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting—a “living laboratory” as it were—for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl undertakes a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.
Counterintuitively, Hirschl argues that the constitutional enshrinement of religion is a rational, prudent strategy that allows opponents of theocratic governance to talk the religious talk without walking most of what they regard as theocracy’s unappealing, costly walk. Many of the jurisdictional, enforcement, and cooptation advantages that gave religious legal regimes an edge in the pre-modern era, are now aiding the modern state and its laws in its effort to contain religion. The “constitutional” in a constitutional theocracy thus fulfills the same restricting function it carries out in a constitutional democracy: it brings theocratic governance under check and assigns to constitutional law and courts the task of a bulwark against the threat of radical religion.
Constitutional Theory is a significant departure from Schmitt’s more polemical Weimar-era works not just in terms of its moderate tone. Through a comparative history of constitutional government in Europe and the United States, Schmitt develops an understanding of liberal constitutionalism that makes room for a strong, independent state. This edition includes an introduction by Jeffrey Seitzer and Christopher Thornhill outlining the cultural, intellectual, and political contexts in which Schmitt wrote Constitutional Theory; they point out what is distinctive about the work, examine its reception in the postwar era, and consider its larger theoretical ramifications. This volume also contains extensive editorial notes and a translation of the Weimar Constitution.
Contributors. Andrew Arato, Aharon Barak, Jon Elster, George P. Fletcher, Louis Henkin, Arthur J. Jacobson, Carlos Santiago Nino, Ulrich K. Preuss, David A. J. Richards, Michel Rosenfeld, Dominique Rousseau, András Sajó, Frederick Schauer, Bernhard Schlink, M. M. Slaughter, Cass R. Sunstein, Ruti G. Teitel, Robin West
This book describes the constitutional law of foreign affairs, derived from the historical understanding of the Constitution's text. It examines timeless and recurring foreign affairs controversies--such as the role of the president and Congress, the power to enter armed conflict, and the power to make and break treaties--and shows how the words, structure, and context of the Constitution can resolve pivotal court cases and leading modern disputes. The book provides a counterpoint to much conventional discussion of constitutional foreign affairs law, which tends to assume that the Constitution's text and history cannot give much guidance, and which rests many of its arguments upon modern practice and policy considerations.
Using a close focus on the text and a wide array of historical sources, Michael Ramsey argues that the Constitution's original design gives the president substantial independent powers in foreign affairs. But, contrary to what many presidents and presidential advisors contend, these powers are balanced by the independent powers given to Congress, the Senate, the states, and the courts. The Constitution, Ramsey concludes, does not make any branch of government the ultimate decision maker in foreign affairs, but rather divides authority among multiple independent power centers.
In her engaging book, Constructing the Enemy, Rajini Srikanth probes the concept of empathy, attempting to understand its different types and how it is—or isn't—generated and maintained in specific circumstances.
Using literary texts to illuminate issues of power and discussions of law, Srikanth focuses on two case studies— the internment of Japanese citizens and Japanese Americans in World War II, after the bombing of Pearl Harbor, and the detainment of Muslim Americans and individuals from various nations in the U.S. prison at Guantanamo Bay.
Through primary documents and interviews that reveal why and how lawyers become involved in defending those who have been designated “enemies,” Srikanth explores the complex conditions under which engaged citizenship emerges. Constructing the Enemy probes the seductive promise of legal discourse and analyzes the emergence and manifestation of empathy in lawyers and other concerned citizens and the wider consequences of this empathy on the institutions that regulate our lives.
Contributors. Rosemary J. Coombe, Margreta de Grazia, Marvin D'Lugo, John Feather, N. N. Feltes, Ann Ruggles Gere, Peter Jaszi, Gerhard Joseph, Peter Lindenbaum, Andrea A. Lunsford and Lisa Ede, Jeffrey A. Masten, Thomas Pfau, Monroe E. Price and Malla Pollack, Mark Rose, Marlon B. Ross, David Sanjek, Thomas Streeter, Jim Swan, Max W. Thomas, Martha Woodmansee, Alfred C. Yen
Recently scholars have become increasingly aware that the study of Chinese law can provide new insight into the forces actually at work in Chinese society in different epochs. In an effort to encourage and facilitate the study of this subject, the thirteen essays of this volume deal with the methodology of studying the legal system of the People's Republic, describe the available research materials, and analyze the problems presented in making the materials of Chinese law intelligible to Western readers. They also review foreign works on Chinese law and explore the difficulties involved in translation and in comparing the Chinese system to our own and to that of the Soviet Union.
Mr. Cohen's thoughtful introduction provides an excellent survey of the worldwide development of studies of Chinese law. It also delineates the nature of the essays that he and the eleven other scholars have contributed to the volume.
Not only are there willing buyers for body parts or babies, Radin observes, but some desperately poor people would be willing sellers, while better-off people find such trades abhorrent. Radin observes that many such areas of contested commodification reflect a persistent dilemma in liberal society: we value freedom of choice and simultaneously believe that choices ought to be restricted to protect the integrity of what it means to be a person. She views this tension as primarily the result of underlying social and economic inequality, which need not reflect an irreconcilable conflict in the premises of liberal democracy.
As a philosophical pragmatist, the author therefore argues for a conception of incomplete commodification, in which some contested things can be bought and sold, but only under carefully regulated circumstances. Such a regulatory regime both symbolizes the importance of nonmarket value to personhood and aspires to ameliorate the underlying conditions of inequality.
This book displays the underlying structure of a complex body of law and integrates that structure with moral principles.
Charles Fried grounds the basic legal institution of contract in the morality of promise, under which individuals incur obligations freely by invoking each other's trust. Contract law and the promise principle are contrasted to the socially imposed obligations of compensation, restitution, and sharing, which determine the other basic institutions of private law, and which come into control where the parties have not succeeded in invoking the promise principle--as in the case of mistake or impossibility. Professor Fried illustrates his argument with a wide range of concrete examples; and opposing views of contract law are discussed in detail, particularly in connection with the doctrines of good faith, duress, and unconscionability.
For law students and legal scholars, Contract asPromise offers a coherent survey of an important legal concept. For philosophers and social scientists, the book is a unique demonstration of the practical and detailed entailments of moral theory.
TyAnna K. Herrington explains current intellectual property law and examines the effect of the Internet and ideological power on its interpretation. Promoting a balanced development of our national culture, she advocates educators’ informed participation in ensuring egalitarian public access to information. She discusses the control of information and the creation of knowledge in terms of the way control functions under current property law.
On January 20, 1984, Earl Washington—defended for all of forty minutes by a lawyer who had never tried a death penalty case—was found guilty of rape and murder in the state of Virginia and sentenced to death. After nine years on death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man.
DNA exonerations have shattered confidence in the criminal justice system by exposing how often we have convicted the innocent and let the guilty walk free. In this unsettling in-depth analysis, Brandon Garrett examines what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing.
Based on trial transcripts, Garrett’s investigation into the causes of wrongful convictions reveals larger patterns of incompetence, abuse, and error. Evidence corrupted by suggestive eyewitness procedures, coercive interrogations, unsound and unreliable forensics, shoddy investigative practices, cognitive bias, and poor lawyering illustrates the weaknesses built into our current criminal justice system. Garrett proposes practical reforms that rely more on documented, recorded, and audited evidence, and less on fallible human memory.
Very few crimes committed in the United States involve biological evidence that can be tested using DNA. How many unjust convictions are there that we will never discover? Convicting the Innocent makes a powerful case for systemic reforms to improve the accuracy of all criminal cases.
Refinery explosions. Accounting scandals. Bank meltdowns. All of these catastrophes—and many more—might rightfully be blamed on corporations. In response, advocates have suggested reforms ranging from increased government regulation to corporate codes of conduct to stop corporate abuses. Joshua Barkan writes that these reactions, which view law as a limit on corporations, misunderstand the role of law in fostering corporate power.
In Corporate Sovereignty, Barkan argues that corporate power should be rethought as a mode of political sovereignty. Rather than treating the economic power of corporations as a threat to the political sovereignty of states, Barkan shows that the two are ontologically linked. Situating analysis of U.S., British, and international corporate law alongside careful readings in political and social theory, he demonstrates that the Anglo-American corporation and modern political sovereignty are founded in and bound together through a principle of legally sanctioned immunity from law. The problems that corporate-led globalization present for governments result not from regulatory failures as much as from corporate immunity that is being exported across the globe.
For Barkan, there is a paradox in that corporations, which are legal creations, are given such power that they undermine the sovereignty of states. He notes that while the relationship between states and corporations may appear adversarial, it is in fact a kind of doubling in which state sovereignty and corporate power are both conjoined and in conflict. Our refusal to grapple with the peculiar nature of this doubling means that some of our best efforts to control corporations unwittingly reinvest the sovereign powers they oppose.
Recent U.S. Supreme Court decisions in Citizens United and other high-profile cases have sparked passionate disagreement about the proper role of corporations in American democracy. Partisans on both sides have made bold claims, often with little basis in historical facts. Bringing together leading scholars of history, law, and political science, Corporations and American Democracy provides the historical and intellectual grounding necessary to put today’s corporate policy debates in proper context.
From the nation’s founding to the present, Americans have regarded corporations with ambivalence—embracing their potential to revolutionize economic life and yet remaining wary of their capacity to undermine democratic institutions. Although corporations were originally created to give businesses and other associations special legal rights and privileges, historically they were denied many of the constitutional protections afforded flesh-and-blood citizens.
This comprehensive volume covers a range of topics, including the origins of corporations in English and American law, the historical shift from special charters to general incorporation, the increased variety of corporations that this shift made possible, and the roots of modern corporate regulation in the Progressive Era and New Deal. It also covers the evolution of judicial views of corporate rights, particularly since corporations have become the form of choice for an increasing variety of nonbusiness organizations, including political advocacy groups. Ironically, in today’s global economy the decline of large, vertically integrated corporations—the type of corporation that past reform movements fought so hard to regulate—poses some of the newest challenges to effective government oversight of the economy.
When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.
For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.
In 2010, one of the most consequential Court decisions in American political history gave wealthy corporations the right to spend unlimited money to influence elections. Justice Anthony Kennedy's majority opinion treated corruption as nothing more than explicit bribery, a narrow conception later echoed by Chief Justice Roberts in deciding McCutcheon v. FEC in 2014. With unlimited spending transforming American politics for the worse, warns Zephyr Teachout, Citizens United and McCutcheon were not just bad law but bad history. If the American experiment in self-government is to have a future, then we must revive the traditional meaning of corruption and embrace an old ideal.
Addressing several recent high-profile scandals, contributors examine both the short- and the long-term ramifications of corporate corruption: the means by which Martha Stewart has been used as an icon and a scapegoat in the ImClone case while broader critical issues have failed to receive the attention they demand; the divisive ways in which the antifeminist Independent Women’s Forum—along with other neocon organizations and pundits—has moved the debate regarding the deregulation of the financial services sector far to the right of the far right; the collapse of Enron and what it means for corporate governance; the global implications of U.S. corporate corruption; the confusion over public and private business transactions in Argentina; the moral panic ensuing from the random violence caused by the Washington, D.C. area snipers precisely as the U.S. was launching a war on Iraq because of its supposed weapons of mass destruction; and the emergence of a new business model and icon, the hiphop mogul.
Contributors. Peter Bratsis, David M. Brennan, Jane Marcus-Delgado, Randy Martin, Nancy Shaw, Ella Shohat, Christopher Holmes Smith, Barbara Spindel, Susan Willis
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