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Comment on Slobogin
Michele Caianiello, Michael Louis Corrado, and Fredrick E. Vars
Germany operates a "double track" system of punishment and preventive detention. Traditionally, this system included fixed-term prison sentences, which were limited by the safeguards of legality, proportionality, double jeopardy, etc., followed by preventative detention of indefinite length, which was not limited by those safeguards. In 2010, the European Court of Human Rights determined that the preventive period had to count as punitive and, thus, should be subject to the safeguards that surround punishment. This decision affects many other European countries that share a version of the "double track" system. While Europe is retreating under the tutelage of the ECHR on this matter, the United States has been developing its own system of preventive detention, both within the criminal law (for sexual predators) and without (for suspected terrorists). The essays in this volume bring together the best of European and American comparative writing on these issues.
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The Separation of Legislative and Executive Powers
Tom Ginsburg, Rosalind Dixon, and Ronald J. Krotoszynski Jr.
his landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law.
Divided into sections on constitutional design and redesign, identity, structure, individual rights and state duties, courts and constitutional interpretation, this comprehensive volume covers dozens of countries as well as a range of approaches to the boundaries of constitutional law. While some chapters reference the text of legal instruments expressly labeled constitutional, others focus on the idea of entrenchment or take a more functional approach.
Challenging the current boundaries of the field, the contributors offer diverse perspectives – cultural, historical and institutional – as well as suggestions for future research. A unique and enlightening volume, Comparative Constitutional Law is an essential resource for students and scholars of the subject. -
Nuclear Non-Proliferation and the UN Security Council in a Multipolar World: Can International Law Protect States from the Security Council?
Matthew Happold and Daniel H. Joyner
Since the creation of the United Nations in 1945, international law has sought to configure itself as a universal system. Yet, despite the best efforts of international institutions, scholars and others to assert the
universal application of international law, its relevance and applicability has been influenced, if not directed, by political power.Today, the "decline of the West" and ascent of China and India poseparticular challenges for international law and institutions. The international system appears to be moving towards multipolarity, with various sites of power competing to exert influence in the world today.With contributors from a variety of countries providing perspectives from the disciplines of international law and international relations theory, International Law in a Multipolar World addresses the implications that multipolarity poses for the international legal system. Contributors including Jean d'Aspremont, Jörg Kammerhofer, Alexander Orakhelashvili, Christian Pippan and Nigel White, explore issues such as the use of force, governance and democracy, regionalism and the relevance of the United Nations in a multipolar world, while considering the overarching theme of the relationship between power and law.
International Law in a Multipolar World is of particular interest to academics and students of public international law, international relations theory and international politics.
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Comment on Chapter 2: "Order" in the Court
Austin Sarat and Paul Horwitz
It is widely recognized that times of national emergency put legality to its greatest test. In such times we rely on sovereign power to rescue us, to hold the danger at bay. Yet that power can and often does threaten the values of legality itself. Sovereignty, Emergency, Legality examines law’s complex relationship to sovereign power and emergency conditions. It puts today’s responses to emergency in historical and institutional context, reminding readers of the continuities and discontinuities in the ways emergencies are framed and understood at different times and in different situations. And, in all this, it suggests the need to be less abstract in the way we discuss sovereignty, emergency, and legality. This book concentrates on officials and the choices they make in defining, anticipating, and responding to conditions of emergency as well as the impact of their choices on embodied subjects, whether citizen or stranger.
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Commentary: Judicial Review of Midnight Deregulation
Austin Sarat and Heather Elliott
Transitions: Legal Change, Legal Meanings illustrates the various intersections, crises, and shifts that continually occur within the law, and how these moments of change interact with and comment on contemporary society.
Together the essays in this volume investigate the transformation of US law during moments of political change and explore what we can learn about law by examining its role and its use in times of transition. Whether by an abrupt shift in regime or an orderly progression from one government to the next, political change often calls into question the stability and versatility of the law, making it appear temporarily absent or in suspension. What challenges to the law arise at these times? To what extent do transitional periods foster ingenuity and resourcefulness, and how might they precipitate crises in legal authority? What do moments of legal change mean for law itself and how legal institutions bring about and respond to times of transition in legal arrangements? Transitions begins the scholarly exploration of these questions that have largely been neglected.
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Commentary: Ordinary and Extraordinary Transitions
Austin Sarat and Paul Horwitz
Transitions: Legal Change, Legal Meanings illustrates the various intersections, crises, and shifts that continually occur within the law, and how these moments of change interact with and comment on contemporary society.
Together the essays in this volume investigate the transformation of US law during moments of political change and explore what we can learn about law by examining its role and its use in times of transition. Whether by an abrupt shift in regime or an orderly progression from one government to the next, political change often calls into question the stability and versatility of the law, making it appear temporarily absent or in suspension. What challenges to the law arise at these times? To what extent do transitional periods foster ingenuity and resourcefulness, and how might they precipitate crises in legal authority? What do moments of legal change mean for law itself and how legal institutions bring about and respond to times of transition in legal arrangements? Transitions begins the scholarly exploration of these questions that have largely been neglected.
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Commentary on Ruti Teitel's Chapter "Global Transitions, New Perspectives on Legality, and Judicial Review"
Austin Sarat and Daniel H. Joyner
Transitions: Legal Change, Legal Meanings illustrates the various intersections, crises, and shifts that continually occur within the law, and how these moments of change interact with and comment on contemporary society.
Together the essays in this volume investigate the transformation of US law during moments of political change and explore what we can learn about law by examining its role and its use in times of transition. Whether by an abrupt shift in regime or an orderly progression from one government to the next, political change often calls into question the stability and versatility of the law, making it appear temporarily absent or in suspension. What challenges to the law arise at these times? To what extent do transitional periods foster ingenuity and resourcefulness, and how might they precipitate crises in legal authority? What do moments of legal change mean for law itself and how legal institutions bring about and respond to times of transition in legal arrangements? Transitions begins the scholarly exploration of these questions that have largely been neglected.
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Commentary: Power, Paradigms, and Legal Prescriptions: "The Rule of Law" as a Necessary but Not Sufficient Condition for Transitional Justice
Austin Sarat and Meredith Render
Transitions: Legal Change, Legal Meanings illustrates the various intersections, crises, and shifts that continually occur within the law, and how these moments of change interact with and comment on contemporary society.
Together the essays in this volume investigate the transformation of US law during moments of political change and explore what we can learn about law by examining its role and its use in times of transition. Whether by an abrupt shift in regime or an orderly progression from one government to the next, political change often calls into question the stability and versatility of the law, making it appear temporarily absent or in suspension. What challenges to the law arise at these times? To what extent do transitional periods foster ingenuity and resourcefulness, and how might they precipitate crises in legal authority? What do moments of legal change mean for law itself and how legal institutions bring about and respond to times of transition in legal arrangements? Transitions begins the scholarly exploration of these questions that have largely been neglected.
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War and Constitutional Change
Mark Brandon, Jeffrey K. Tulis, and Stephen Macedo
Constitutional democracy is at once a flourishing idea filled with optimism and promise--and an enterprise fraught with limitations. Uncovering the reasons for this ambivalence, this book looks at the difficulties of constitutional democracy, and reexamines fundamental questions: What is constitutional democracy? When does it succeed or fail? Can constitutional democracies conduct war? Can they preserve their values and institutions while addressing new forms of global interdependence? The authors gathered here interrogate constitutional democracy's meaning in order to illuminate its future.
The book examines key themes--the issues of constitutional failure; the problem of emergency power and whether constitutions should be suspended when emergencies arise; the dilemmas faced when constitutions provide and restrict executive power during wartime; and whether constitutions can adapt to such globalization challenges as immigration, religious resurgence, and nuclear arms proliferation. -
Of Footnote One and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe
Richard Garnett, Andrew Koppelman, and Paul Horwitz
This Stories title will enrich First Amendment courses and help students appreciate the premises that animate the cases and the values that are at stake in religious-liberty and free-speech controversies, rarely captured fully by doctrinal presentations. This collection offers carefully selected and rich cases that involve real stories, which can themselves serve as points-of-entry to the many great, ongoing debates that run through our free speech and religious liberty traditions.
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Commentary: Trust is Something You've Gotta Earn, and It Takes Time
Austin Sarat and Montre' D. Carodine
Imagining Legality: Where Law Meets Popular Culture is collection of essays on the relationship between law and popular culture that posits, in addition to the concepts of law in the books and law in action, a third concept of law in the image—that is, of law as it is perceived by the public through the lens of public media.
Imagining Legality argues that images of law suggested by television and film are as numerous as they are various, and that they give rise to a potent and pervasive imaginative life of the law. The media’s projections of the legal system remind us not only of the way law lives in our imagination but also of the contingencies of our own legal and social arrangements.
Contributors to Imagining Legality are less interested in the accuracy of the portrayals of law in film and television than in exploring the conditions of law’s representation, circulation, and consumption in those media. In the same way that legal scholars have taken on the disciplinary perspectives of history, economics, sociology, anthropology, and psychology in relation to the law, these writers bring historical, sociological, and cultural analysis, as well as legal theory, to aid in the understanding of law and popular culture.
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Commentary: Race and Real Justice
Austin Sarat and Grace S. Lee
Imagining Legality: Where Law Meets Popular Culture is collection of essays on the relationship between law and popular culture that posits, in addition to the concepts of law in the books and law in action, a third concept of law in the image—that is, of law as it is perceived by the public through the lens of public media.
Imagining Legality argues that images of law suggested by television and film are as numerous as they are various, and that they give rise to a potent and pervasive imaginative life of the law. The media’s projections of the legal system remind us not only of the way law lives in our imagination but also of the contingencies of our own legal and social arrangements.
Contributors to Imagining Legality are less interested in the accuracy of the portrayals of law in film and television than in exploring the conditions of law’s representation, circulation, and consumption in those media. In the same way that legal scholars have taken on the disciplinary perspectives of history, economics, sociology, anthropology, and psychology in relation to the law, these writers bring historical, sociological, and cultural analysis, as well as legal theory, to aid in the understanding of law and popular culture.
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Democracy as the Rule of Law
Nasser Hussain, Austin Sarat, and Paul Horwitz
Recent controversies surrounding the war on terror and American intervention in Iraq and Afghanistan have brought rule of law rhetoric to a fevered pitch. While President Obama has repeatedly emphasized his Administration’s commitment to transparency and the rule of law, nowhere has this resolve been so quickly and severely tested than with the issue of the possible prosecution of Bush Administration officials. While some worry that without legal consequences there will be no effective deterrence for the repetition of future transgressions of justice committed at the highest levels of government, others echo Obama’s seemingly reluctant stance on launching an investigation into allegations of criminal wrongdoing by former President Bush, Vice President Cheney, Secretary Rumsfeld, and members of the Office of Legal Counsel. Indeed, even some of the Bush Administration’s harshest critics suggest that we should avoid such confrontations, that the price of political division is too high. Measured or partisan, scholarly or journalistic, clearly the debate about accountability for the alleged crimes of the Bush Administration will continue for some time.
Using this debate as its jumping off point, When Governments Break the Law takes an interdisciplinary approach to the legal challenges posed by the criminal wrongdoing of governments. But this book is not an indictment of the Bush Administration; rather, the contributors take distinct positions for and against the proposition, offering revealing reasons and illuminating alternatives. The contributors do not ask the substantive question of whether any Bush Administration officials, in fact, violated the law, but rather the procedural, legal, political, and cultural questions of what it would mean either to pursue criminal prosecutions or to refuse to do so. By presuming that officials could be prosecuted, these essays address whether they should.
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Public Regulation in the United States: An Overview
Dário Moura Vicente, Marshall J. Breger, and Heather Elliott
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The Technological Transformation of the Administrative State: the Case of E-Rulemaking
Dário Moura Vicente, Marshall J. Breger, and Heather Elliott
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After Katrina: Laying Bare the Anatomy of American Caste
Jeremy I. Levitt, Matthew C. Whitaker, and Bryan K. Fair
On August 29, 2005, Hurricane Katrina slammed into the Gulf Coast states of Louisiana and Mississippi. The storm devastated the region and its citizens. But its devastation did not reach across racial and class lines equally. In an original combination of research and advocacy, Hurricane Katrina: America’s Unnatural Disaster questions the efficacy of the national and global responses to Katrina’s central victims, African Americans. This collection of polemical essays explores the extent to which African Americans and others were, and are, disproportionately affected by the natural and manmade forces that caused Hurricane Katrina. Such an engaged study of this tragic event forces us to acknowledge that the ways in which we view our history and life have serious ramifications on modern human relations, public policy, and quality of life.
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International Legal Responses to WMD Proliferation
Richard Devetak, Christopher W. Hughes, and Daniel H. Joyner
The events of the 11th of September 2001 revealed most dramatically that globalization has a shadow. While large sections of the world’s population enjoy the perceived benefits of globalization, others seek to utilize globalization for their own politically violent purposes. If 9/11 demonstrated anything, it is that globalization can as readily facilitate violence and insecurity as it can produce stability, prosperity and political order.
This edited volume offers important new methodological and multi-disciplinary insights into the study of globalization and political violence. It brings together studies from various disciplines in order to address the precise nature of the relationship between globalization and political violence as it seeks to offer new theoretical and empirical understandings of the types of actors involved in political violence, either as perpetrators or victims.
Examples of the studies include the changing character of state militaries and state-to-state conflict under globalization, the emergence of ‘new wars’ fuelled by globalization, the role of state militaries in intervention, new forms of violence directed by states against refugees and anti-globalization protesters, the role of terrorist actors post-9/11, networks for the proliferation of weapons of mass destruction and the rise of private military firms amongst others.
The Globalization of Political Violence will be of interest to students and researchers of politics, international relations, security studies and international political economy.
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They're a Moral Obligation
David Cay Johnston, Stephanie Greenwood, and Susan P. Hamill
Paying taxes. It's something almost everyone loves to hate. 10 Excellent Reasons Not to Hate Taxes makes the case for thinking about taxes in a fresh and progressive way and offers plenty of material for anyone interested in countering the conservative anti-government, anti-tax agenda.
Written by activists, economists, teachers, political scientists, and business people, 10 Excellent Reasons Not to Hate Taxes offers an array of powerful arguments that will reframe the tax debate. Chapters on the effect of taxes on the economy, education, the environment, and the distribution of opportunity will arm readers with a wealth of arguments to turn the tables when thinking―or arguing―about taxes and provide a menu of ideas for how to transform the tax code into a tool for social justice.
With a January publication date, just when the tax preparation books and software flood the stores, this book will spark a lively and much-needed debate about all manner of tax issues, from the inheritance tax and flat taxes to tax cuts and the role that taxes play in the growing economic divide in the United States. -
The Challenges of Counter-proliferation: Law and Policy of the Iraq Intervention
Phil Shiner, Andrew Williams, and Daniel H. Joyner
The decision by the US and UK governments to use military force against Iraq in 2003 and the subsequent occupation and administration of that State, has brought into sharp focus fundamental fault lines in international law. The decision to invade, the conduct of the war and occupation and the mechanisms used to administer the country all challenge the international legal community placing it at a crossroads. When can the use of force be justified? What are the limits of military operations? What strength does international criminal law possess in the face of such interventions? How effective is the international regime of human rights in these circumstances? What role does domestic law have to play? How the law now responds and develops in the light of these matters will be of fundamental global importance for the 21st century and an issue of considerable political and legal concern. This book explores this legal territory by examining a number of issues fundamental to the future direction of international law in the War's aftermath. Consideration is also given to the impact on UK law. Both practical and academic perspectives are taken in order to scrutinise key questions and consider the possible trajectories that international law might now follow.
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The Story of LLCs: Combining the Best Features of a Flawed Business Tax Structure
Steven A. Bank, Kirk J. Stark, and Susan P. Hamill
This book does not deal solely with judicial opinions. In the field of business taxation, many of the most significant developments are not cases, and certainly not Supreme Court cases, but rather legislative and administrative changes and transactional innovations. Business Tax Stories includes chapters on several landmark cases; however, it also surveys many of the critical developments in the history of U.S. corporate and partnership taxation. Taken as a whole, this title is organized to serve as a history of business taxation over the last century.
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Civil Disobedience
Kermit L. Hall, David S. Clark, James W. Ely, Joel B. Grossman, N. E. H. Hull, and Ronald J. Krotoszynski Jr.
A landmark in legal publishing, The Oxford Companion to the Supreme Court is a now classic text many of whose entries are regularly cited by scholars as the definitive statement on any particular subject. In the tradition of that work, editor in chief Kermit L. Hall offers up The Oxford Companion to American Law, a one-volume, A-Z encyclopedia that covers topics ranging from aging and the law, wiretapping and electronic eavesdropping, the Salem Witch Trials and Plessy vs. Ferguson.
The Companion takes as its starting point the insight that law is embedded in society, and that to understand American law one must necessarily ask questions about the relationship between it and the social order, now and in the past. The volume assumes that American law, in all its richness and complexity, cannot be understood in isolation, as simply the business of the Supreme Court, or as a list of common law doctrines. Hence, the volume takes seriously issues involving laws role in structuring decisions about governance, the significance of state and local law and legal institutions, and the place of American law in a comparative international perspective. Nearly 500 entries are included, written by over 300 expert contributors.
Intended for the working lawyer or judge, the high school student working on a term paper, or the general adult reader interested in the topic, the Companion is the authoritative reference work on the subject of American law. -
Scholastic Aptitude Test Scores, Race, and Academic Performance in Selective Colleges and Universities
Christopher Jencks, Meredith Phillips, Fredrick E. Vars, and William G. Bowen
The test score gap between blacks and whites—on vocabulary, reading, and math tests, as well as on tests that claim to measure scholastic aptitude and intelligence--is large enough to have far-reaching social and economic consequences. In their introduction to this book, Christopher Jencks and Meredith Phillips argue that eliminating the disparity would dramatically reduce economic and educational inequality between blacks and whites. Indeed, they think that closing the gap would do more to promote racial equality than any other strategy now under serious discussion. The book offers a comprehensive look at the factors that contribute to the test score gap and discusses options for substantially reducing it.
Although significant attempts have been made over the past three decades to shrink the test score gap, including increased funding for predominantly black schools, desegregation of southern schools, and programs to alleviate poverty, the median black American still scores below 75 percent of American whites on most standardized tests. The book brings together recent evidence on some of the most controversial and puzzling aspects of the test score debate, including the role of test bias, heredity, and family background. It also looks at how and why the gap has changed over the past generation, reviews the educational, psychological, and cultural explanations for the gap, and analyzes its educational and economic consequences.
The authors demonstrate that traditional explanations account for only a small part of the black-white test score gap. They argue that this is partly because traditional explanations have put too much emphasis on racial disparities in economic resources, both in homes and in schools, and on demographic factors like family structure. They say that successful theories will put more emphasis on psychological and cultural factors, such as the way black and white parents teach their children to deal with things they do not know or understand, and the way black and white children respond to the same classroom experiences. Finally, they call for large-scale experiments to determine the effects of schools' racial mix, class size, ability grouping, and other policies.
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Attitudes Toward Affirmative Action: Paradox or Paradigm?
Carol M. Swain and Fredrick E. Vars
Race versus Class traces the evolution of affirmative action policies and explores the issues surrounding the current debate. In addition to providing fundamental facts, the book presents original insights and recommendations for salvaging the policy. Included among the essays are case studies of race-exclusive scholarships, housing policies, and the Head Start program. The book also includes a discussion of the difficulty of measuring public opinion on affirmative action, and of how existing methods might be improved. Sound public policy recommendations emerge from the book's racially diverse group of contributors.
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