In the 1830s, the French aristocrat Alexis de Tocqueville wrote that "insufferable despotism" would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that, after a great wrong turn in the early twentieth century, Tocqueville's nightmarehas come true. In those years, it seems, a group of radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom. Tocqueville's Nightmare, shows, to the contrary, that the nation's best corporate lawyers were among the creators of "commissiongovernment," that supporters were more interested in purging government of corruption than creating a socialist utopia, and that the principles of individual rights, limited government, and due process were designed into the administrative state. Far from following "un-American" models, American statebuilders rejected the leading European scheme for constraining government, the Rechtsstaat, a state of rules. Instead, they looked to an Anglo-American tradition that equated the rule of law with the rule of courts and counted on judges toreview the bases for administrators' decisions aggressively. Soon, however, even judges realized that strict judicial review shifted to generalist courts decisions best left to experts. The most masterful judges, including Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941,ultimately decided that a "day in court" was unnecessary if individuals had already had a "day in commission" where the fundamentals of due process and fair play prevailed. Not only did this procedural notion of the rule of law solve the judges' puzzle of reconciling bureaucracy and freedom; it alsoassured lawyers that their expertise in the ways of the courts would remain valuable and professional politicians that presidents would not use administratively distributed largess as an independent source of political power.
For much of the 20th century, American gays and lesbians lived in fear that public exposure of their sexualities might cause them to be fired, blackmailed, or even arrested. Today, they are enjoying an unprecedented number of legal rights and protections. Clearly, the tides have shifted for gays and lesbians, but what caused this enormous sea change? In his gripping new book, Walter Frank offers an in-depth look at the court cases that were pivotal in establishing gay rights. But he also tells the story of those individuals who were willing to make waves by fighting for those rights, taking enormous personal risks at a time when the tide of public opinion was against them. Frank's accessible style brings complex legal issues down to earth but, as a former litigator, never loses sight of the law's human dimension and the context of the events occurring outside the courtroom. Chronicling the past half-century of gay and lesbian history, Law and the Gay Rights Story offers a unique perspective on familiar events like the Stonewall Riots, the AIDS crisis, and the repeal of "Don't Ask, Don't Tell." Frank pays special attention to the constitutional issues surrounding same-sex marriage and closely analyzes the two recent Supreme Court cases addressing the issue. While a strong advocate for gay rights, Frank also examines critiques of the movement, including some coming from the gay community itself. Comprehensive in coverage, the book explains the legal and constitutional issues involved in each of the major goals of the gay rights movement: a safe and healthy school environment, workplace equality, an end to anti-gay violence, relationship recognition, and full integration into all the institutions of the larger society, including marriage and military service. Drawing from extensive archival research and from decades of experience as a practicing litigator, Frank not only provides a vivid history, but also shows where the battle for gay rights might go from here.
The New Deal is often said to represent a sea change in American constitutional history, overturning a century of precedent to permit an expanded federal government, increased regulation of the economy, and eroded property protections. John Compton offers a surprising revision of this familiar narrative, showing that nineteenth-century evangelical Protestants, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century. Following the great religious revivals of the early 1800s, American evangelicals embarked on a crusade to eradicate immorality from national life by destroying the property that made it possible. Their cause represented a direct challenge to founding-era legal protections of sinful practices such as slavery, lottery gambling, and buying and selling liquor. Although evangelicals urged the judiciary to bend the rules of constitutional adjudication on behalf of moral reform, antebellum judges usually resisted their overtures. But after the Civil War, American jurists increasingly acquiesced in the destruction of property on moral grounds. In the early twentieth century, Oliver Wendell Holmes and other critics of laissez-faire constitutionalism used the judiciary's acceptance of evangelical moral values to demonstrate that conceptions of property rights and federalism were fluid, socially constructed, and subject to modification by democratic majorities. The result was a progressive constitutional regime--rooted in evangelical Protestantism--that would hold sway for the rest of the twentieth century.
By the president of the prestigious Brennan Center for Justice at NYU School of Law, the life story of the most controversial, volatile, misunderstood provision of the Bill of Rights. At a time of renewed debate over guns in America, what does the Second Amendment mean? This book looks at history to provide some surprising, illuminating answers. The Amendment was written to calm public fear that the new national government would crush the state militias made up of all (white) adult men-who were required to own a gun to serve. Waldman recounts the raucous public debate that has surrounded the amendment from its inception to the present. As the country spread to the Western frontier, violence spread too. But through it all, gun control was abundant. In the 20th century, with Prohibition and gangsterism, the first federal control laws were passed. In all four separate times the Supreme Court ruled against a constitutional right to own a gun. The present debate picked up in the 1970s-part of a backlash to the liberal 1960s and a resurgence of libertarianism. A newly radicalized NRA entered the campaign to oppose gun control and elevate the status of an obscure constitutional provision. In 2008, in a case that reached the Court after a focused drive by conservative lawyers, the US Supreme Court ruled for the first time that the Constitution protects an individual right to gun ownership. Famous for his theory of "originalism," Justice Antonin Scalia twisted it in this instance to base his argument on contemporary conditions. In The Second Amendment: A Biography, Michael Waldman shows that our view of the amendment is set, at each stage, not by a pristine constitutional text, but by the push and pull, the rough and tumble of political advocacy and public agitation.
Examines and measures the extent to which statutory language affects judicial behavior. Randazzo and Waterman offer a model that integrates ideological and legal factors through an empirical measure of statutory discretion. The model is tested across multiple judicial institutions, at both the federal and state levels, and reveals that judges are influenced by the levels of discretion afforded in the legislative statutes. In those cases where lawmakers have clear policy preferences, legislation encourages judges to strictly interpret the plain meaning of the law. Conversely, if policy preferences are unclear, legislation leaves open the possibility that judges will make dicisions based on their own ideological policy preferences. Checking the Courts thus provides us with a better understanding of the dynamic interplay between law and ideology.
Written by former law clerks, legal scholars, biographers, historians, and political scientists, the essays in In Chambers tell the fascinating story of clerking at the Supreme Court. In addition to reflecting the personal experiences of the law clerks with their justices, the essays reveal how clerks are chosen, what tasks are assigned to them, and how the institution of clerking has evolved over time, from the first clerks in the late 1800s to the clerks of Justice Ruth Bader Ginsburg and Chief Justice William Rehnquist. In Chambers offers a variety of perspectives on the unique experience of Supreme Court clerks. Former law clerks-including Alan M. Dershowitz, Charles A. Reich, and J. Harvie Wilkinson III-write about their own clerkships, painting vivid and detailed pictures of their relationships with the justices, while other authors write about the various clerkships for a single justice, putting a justice's practice into a broader context. The book also includes essays about the first African American and first woman to hold clerkships. Sharing their insights, anecdotes, and experiences in a clear, accessible style, the contributors provide readers with a rare glimpse into the inner workings of the Supreme Court.
Should public opinion determine - or even influence - sentencing policy and practice? Should the punishment of criminal offenders reflect what the public regards as appropriate? These deceptively simple questions conceal complex theoretical and methodological challenges to the administration of punishment. In the West, politicians have often answered these questions in the affirmative; penal reforms have been justified with direct reference to the attitudes of the public. This is whythe contention that politicians should bridge the gap between the public and criminal justice practice has widespread resonance. Criminal law scholars, for their part, have often been more reluctant to accept public input in penal practice, and some have even held that the idea of consulting public opinion constitutes a populist approach to punishment. The purpose of this book is to examine the moral significance of public opinion for penal theory and practice. For the first time in a single volume the editors, Jesper Ryberg and Julian V. Roberts, have assembled a number of respected criminologists, philosphers, and legal theorists to address the various aspects of why and how public opinion should be reflected in the way the criminal justice system deals with criminals. The chapters address the myriad complexities surrounding this issue by first weighing the justifications for incorporating public views into punishment practices and then considering the various ways this mightbe achieved through juries, prosecutors, restoratifve justice programs, and other means.
For nearly forty years the United States has been gripped by policies that have placed more than 2.5 million Americans in jails and prisons designed to hold a fraction of that number of inmates. Our prisons are not only vast and overcrowded, they are degrading#151;relying on racist gangs, lockdowns, and Supermax-style segregation units to maintain a tenuous order. Mass Incarceration on Trial examines a series of landmark decisions about prison conditions#151;culminating in Brown v. Plata, decided in May 2011 by the U.S. Supreme Court#151;that has opened an unexpected escape route from this trap of #147;tough on crime” politics. This set of rulings points toward values that could restore legitimate order to American prisons and, ultimately, lead to the demise of mass incarceration. Simon argues that much like the school segregation cases of the last century, these new cases represent a major breakthrough in jurisprudence#151;moving us from a hollowed-out vision of civil rights to the threshold of human rights and giving court backing for the argument that, because the conditions it creates are fundamentally cruel and unusual, mass incarceration is inherently unconstitutional. Since the publication of Michelle Alexander’s The New Jim Crow, states around the country have begun to question the fundamental fairness of our criminal justice system. This book offers a provocative and brilliant reading to the end of mass incarceration.
In many democracies, voter turnout is low and getting lower. If the people choose not to govern themselves, should they be forced to do so? For Jason Brennan, compulsory voting is unjust and a petty violation of citizens' liberty. The median non-voter is less informed and rational, as well as more biased, than the median voter. According to Lisa Hill, compulsory voting is a reasonable imposition on personal liberty. Hill points to the discernible benefits of compulsory voting and argues that high turnout elections are more democratically legitimate. The authors - both well-known for their work on voting and civic engagement - debate questions such as: • Do citizens have a duty to vote, and is it an enforceable duty? • Does compulsory voting violate citizens' liberty? If so, is this sufficient grounds to oppose it? Or is it a justifiable violation? Might it instead promote liberty on the whole? • Is low turnout a problem or a blessing?
The inside story of the Supreme Court decisions that brought true democracy to the United States As chief justice of the U.S. Supreme Court, Earl Warren is most often remembered for landmark rulings in favor of desegregation and the rights of the accused. But Warren himself identified a lesser known group of cases—Baker v. Carr, Reynolds v. Sims, and their companions—as his most important work. J. Douglas Smith’s On Democracy’s Doorstep masterfully recounts the tumultuous and often overlooked events that established the principle of “one person, one vote” in the United States. Before the Warren Court acted, American democracy was in poor order. As citizens migrated to urban areas, legislative boundaries remained the same, giving rural lawmakers from sparsely populated districts disproportionate political power—a power they often used on behalf of influential business interests. Smith shows how activists ranging from city boosters in Tennessee to the League of Women Voters worked to end malapportionment, incurring the wrath of chambers of commerce and southern segregationists as they did so. Despite a conspiracy of legislative inaction and a 1946 Supreme Court decision that instructed the judiciary not to enter the “political thicket,” advocates did not lose hope. As Smith shows, they skillfully used the Fourteenth Amendment’s Equal Protection Clause to argue for radical judicial intervention. Smith vividly depicts the unfolding drama as Attorney General Robert F. Kennedy pressed for change, Solicitor General Archibald Cox cautiously held back, young clerks pushed the justices toward ever-bolder reform, and the powerful Senate Minority Leader Everett Dirksen obsessively sought to reverse the judicial revolution that had upended state governments from California to Virginia. Today, following the Court’s recent controversial decisions on voting rights and campaign finance, the battles described in On Democracy’s Doorstep have increasing relevance. With erudition and verve, Smith illuminates this neglected episode of American political history and confronts its profound consequences.
Law's ideas of nature appear in different doctrinal and institutional settings, historical periods, and political dialogues. Nature underlies every behavior, contract, or form of wealth, and in this broad sense influences every instance of market transaction or governmental intervention. Recognizing that law has embedded discrete constructions of nature helps in understanding how humans value their relationship with nature. This book offers a scholarly examination of the manner in which nature is constructed through law, both in the 'hard' sense of directly regulating human activities that impact nature, and in the 'soft' manner in which law's ideas of nature influence and are influenced by behaviors, values, and priorities. Traditional accounts of the intersection between law and nature generally focus on environmental laws that protect wilderness. This book will build on the constructivist observation that when considered as a culturally contingent concept, 'nature' is a self-perpetuating and self-reinforcing social creation.
From divorce court to popular culture, alimony is a dirty word. Unpopular and rarely ordered, the awards are frequently inconsistent and unpredictable. The institution itself is often viewed as an historical relic that harkens back to a gendered past in which women lacked the economic independence to free themselves from economic support by their spouses. In short, critics of alimony claim it has no place in contemporary visions of marriage as a partnership of equals. But as Cynthia Lee Starnes argues in The Marriage Buyout, alimony is often the only practical tool for ensuring that divorce does not treat today’s primary caregivers as if they were suckers. Her solution is to radically reconceptualize alimony as a marriage buyout. Starnes’s buyouts draw on a partnership model of marriage that reinforces communal norms of marriage, providing a gender-neutral alternative to alimony that assumes equality in spousal contribution, responsibility, and right. Her quantification formulae support new default rules that make buyouts more certain and predictable than their current alimony counterparts. Looking beyond alimony, Starnes outlines a new vision of marriages with children, describing a co-parenting partnership between committed couples, and the conceptual basis for income sharing between divorced parents of minor children. Ultimately, under a partnership model, the focus of alimony is on gain rather than loss and equality rather than power: a spouse with disparately low earnings isn’t a sucker or a victim dependent on a fixed alimony payment, but rather an equal stakeholder in marriage who is entitled at divorce to share any gains the marriage produced.
Medical law is concerned with our bodies, and what happens to them during and after our lives. When things go wrong with our bodies, we want to know what our rights are, and what governs the conduct of the clinicians into whose hands we put our lives and limbs. Dealing with matters of life anddeath, it can therefore have a fundamental impact on medical practice. Headlines in the media often involve the core issues of medical law - organ transplantation, abortion, withdrawal of treatment, euthanasia, confidentiality, research on humans - these are topics that affect us all. Headlines can misrepresent, however. In order to fully understand the issues andtheir relevance, we have to delve into the cases and into the principles behind them. In this highly readable Very Short Introduction, Charles Foster explores different examples to illustrate the key problems and principles of medical law.
The international community has made great progress in improving global health. But staggering health inequalities between rich and poor still remain, raising fundamental questions of social justice. In a book that systematically defines the burgeoning field of global health law, Lawrence Gostin drives home the need for effective global governance for health and offers a blueprint for reform, based on the principle that the opportunity to live a healthy life is a basic human right. Gostin shows how critical it is for institutions and international agreements to focus not only on illness but also on the essential conditions that enable people to stay healthy throughout their lifespan: nutrition, clean water, mosquito control, and tobacco reduction. Policies that shape agriculture, trade, and the environment have long-term impacts on health, and Gostin proposes major reforms of global health institutions and governments to ensure better coordination, more transparency, and accountability. He illustrates the power of global health law with case studies on AIDS, influenza, tobacco, and health worker migration. Today's pressing health needs worldwide are a problem not only for the medical profession but also for all concerned citizens. Designed with the beginning student, advanced researcher, and informed public in mind, Global Health Law will be a foundational resource for teaching, advocacy, and public discourse in global health.
Since its founding, the U.S. has struggled with issues of federalism and states’ rights. In almost every area of law, from abortion to zoning, conflicts arise between the states and the federal government over which entity is best suited to create and enforce laws. In the last decade, immigration has been on the front lines of this debate, with states such as Arizona taking an extremely assertive role in policing immigrants within their borders. While Arizona and its notorious SB 1070 is the most visible example of states claiming expanded responsibility to make and enforce immigration law, it is far from alone. An ordinance in Hazelton, Pennsylvania prohibited landlords from renting to the undocumented. Several states have introduced legislation to deny citizenship to babies who are born to parents who are in the United States without authorization. Other states have also enacted legislation aimed at driving out unauthorized migrants. Strange Neighbors explores the complicated and complicating role of the states in immigration policy and enforcement, including voices from both sides of the debate. While many contributors point to the dangers inherent in state regulation of immigration policy, at least two support it, while others offer empirically-based examinations of state efforts to regulate immigration within their borders, pointing to wide, state-by-state disparities in locally-administered immigration policies and laws. Ultimately, the book offers an extremely timely, thorough, and spirited discussion on an issue that will continue to dominate state and federal legislatures for years to come.
The concept of law lies at the heart of our social and political life. Legal philosophy, or jurisprudence, explores the notion of law and its role in society, illuminating its meaning and its relation to the universal questions of justice, rights, and morality. In this Very Short Introduction Raymond Wacks analyses the nature and purpose of the legal system, and the practice by courts, lawyers, and judges. Wacks reveals the intriguing and challenging nature of legal philosophy with clarity and enthusiasm, providing an enlightening guide to the centralquestions of legal theory. In this revised edition Wacks makes a number of updates including new material on legal realism, changes to the approach to the analysis of law and legal theory, and updates to historical and anthropological jurisprudence. ABOUT THE SERIES: The Very Short Introductions series from Oxford University Press contains hundreds of titles in almost every subject area. These pocket-sized books are the perfect way to get ahead in a new subject quickly. Our expert authors combine facts, analysis, perspective, new ideas, andenthusiasm to make interesting and challenging topics highly readable.
Don't drink and drive. It's a deceptively simple rule, but one that is all too often ignored. And while efforts to eliminate drunk driving have been around as long as automobiles, every movement to keep drunks from driving has hit some alarming bumps in the road. Barron H. Lerner narrates the two strong-and vocal-sides to this debate in the United States: those who argue vehemently against drunk driving, and those who believe the problem is exaggerated and overregulated. A public health professor and historian of medicine, Lerner asks why these opposing views exist, examining drunk driving in the context of American beliefs about alcoholism, driving, individualism, and civil liberties. Angry and bereaved activist leaders and advocacy groups like Mothers Against Drunk Driving campaign passionately for education and legislation, but even as people continue to be killed, many Americans remain unwilling to take stronger steps to address the problem. Lerner attributes this attitude to Americans' love of drinking and love of driving, an inadequate public transportation system, the strength of the alcohol lobby, and the enduring backlash against Prohibition. The stories of people killed and maimed by drunk drivers are heartrending, and the country's routine rejection of reasonable strategies for ending drunk driving is frustratingly inexplicable. This book is a fascinating study of the culture of drunk driving, grassroots and professional efforts to stop it, and a public that has consistently challenged and tested the limits of individual freedom. Why, despite decades and decades of warnings, do people still choose to drive while intoxicated? One for the Road provides crucial historical lessons for understanding the old epidemic of drunk driving and the new epidemic of distracted driving.
As of the latest national elections, it costs approximately $1 billion to become president, $10 million to become a Senator, and $1 million to become a Member of the House. High-priced campaigns, an elite class of donors and spenders, superPACs, and increasing corporate political power have become the new normal in American politics. In Capitalism v. Democracy, Timothy Kuhner explains how these conditions have corrupted American democracy, turning it into a system of rule that favors the wealthy and marginalizes ordinary citizens. Kuhner maintains that these conditions have corrupted capitalism as well, routing economic competition through political channels and allowing politically powerful companies to evade market forces. The Supreme Court has brought about both forms of corruption by striking down campaign finance reforms that limited the role of money in politics. Exposing the extreme economic worldview that pollutes constitutional interpretation, Kuhner shows how the Court became the architect of American plutocracy. Capitalism v. Democracy offers the key to understanding why corporations are now citizens, money is political speech, limits on corporate spending are a form of censorship, democracy is a free market, and political equality and democratic integrity are unconstitutional constraints on money in politics. Supreme Court opinions have dictated these conditions in the name of the Constitution, as though the Constitution itself required the privatization of democracy. Kuhner explores the reasons behind these opinions, reveals that they form a blueprint for free market democracy, and demonstrates that this design corrupts both politics and markets. He argues that nothing short of a constitutional amendment can set the necessary boundaries between capitalism and democracy.
Sexuality & Sexual Orientation
As Americans, we cherish the freedom to associate. However, with the freedom to associate comes the right to exclude those who do not share our values and goals. What happens when the freedom of association collides with the equally cherished principle that every individual should be free from invidious discrimination? This is precisely the question posed in Boy Scouts of America v. James Dale, a lawsuit that made its way through the courts over the course of a decade, culminating in 2000 with a landmark ruling by the U.S. Supreme Court. In Judging the Boy Scouts of America, Richard J. Ellis tells the fascinating story of the Dale case, placing it in the context of legal principles and precedents, Scouts' policies, gay rights, and the "culture wars" in American politics. The story begins with James Dale, a nineteen-year old Eagle Scout and assistant scoutmaster in New Jersey, who came out as a gay man in the summer of 1990. The Boy Scouts, citing their policy that denied membership to "avowed homosexuals," promptly terminated Dale's membership. Homosexuality, the Boy Scout leadership insisted, violated the Scouts' pledge to be "morally straight." With the aid of the Lambda Legal Defense Fund, Dale sued for discrimination. Ellis tracks the case from its initial filing in New Jersey through the final decision of the U.S. Supreme Court in favor of the Scouts. In addition to examining the legal issues at stake, including the effect of the Supreme Court's ruling on the law of free association, Ellis also describes Dale's personal journey and its intersection with an evolving gay rights movement. Throughout he seeks to understand the puzzle of why the Boy Scouts would adopt and adhere to a policy that jeopardized the organization's iconic place in American culture—and, finally, explores how legal challenges and cultural changes contributed to the Scouts' historic policy reversal in May 2013 that ended the organization's ban on gay youth (though not gay adults).
Taxation - Federal
This product is designed to guide students through the conceptual framework of subchapter K. The material avoids neither the hard questions nor the conceptual difficulties, leaving students with a firm understanding of partnership taxation. Each chapter begins with a basic explanation of the relevant provisions and the roles that they play in the overall structure of subchapter K. It includes an increasingly detailed discussion of the specific rules, including multiple illustrative examples. Each chapter builds on the earlier chapters, leading the student through subchapter K. It is appropriate for J.D. or graduate-level law school courses on partnership taxation.
In Knowing the Suffering of Others, legal scholar Austin Sarat brings together essays that address suffering as it relates to the law, highlighting the ways law imagines suffering and how pain and suffering become jurisprudential facts. From fetal imaging to end-of-life decisions, torts to international human rights, domestic violence to torture, and the law of war to victim impact statements, the law is awash in epistemological and ethical problems associated with knowing and imagining suffering. In each of these domains we might ask: How well do legal actors perceive and understand suffering in such varied domains of legal life? What problems of representation and interpretation bedevil efforts to grasp the suffering of others? What historical, political, literary, cultural, and/or theological resources can legal actors and citizens draw on to understand the suffering of others? In Knowing the Suffering of Others, Austin Sarat presents legal scholarship that explores these questions and puts the problem of suffering at the center of thinking about law. The contributors to this volume do not regard pain and suffering as objective facts of a universe remote from law; rather they examine how both are discursively constructed in and by law. They examine how pain and suffering help construct and give meaning to the law as we know it. The authors attend to the various ways suffering appears in law as well as the different forms of suffering that require the law’s attention. Throughout this book law is regarded as a domain in which the meanings of pain and suffering are contested, and constituted, as well as an instrument for inflicting suffering or for providing or refusing its relief. It challenges scholars, lawyers, students, and policymakers to ask how various legal actors and audiences understand the suffering of others. Contributors Montré D. Carodine / Cathy Caruth / Alan L. Durham / Bryan K.Fair / Steven H. Hobbs / Gregory C. Keating / Linda Ross Meyer / Meredith M. Render / Jeannie Suk / John Fabian Witt