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What does it mean to have a constitutional right in an era in which most rights must yield to 'compelling governmental interests'? After recounting the little-known history of the invention of the compelling-interest formula during the 1960s, The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via 'strict scrutiny' and other, similar, judge-crafted tests. The book's answers not only enrich philosophical understanding of the concept of a 'right', but also produce important practical payoffs. Its insights should affect how courts decide cases and how citizens should think about the judicial role. Contributing to the conversation between originalists and legal realists, Richard H. Fallon, Jr explains what constitutional rights are, what courts must do to identify them, and why the protections that they afford are more limited than most people think.
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Between 1963 and 2008 Kenya experienced systematic atrocities, economic crimes, ethnic violence, and the illegal taking of land. To come to terms with these historical injustices and gross violations of human rights, the Kenyan Truth, Justice and Reconciliation Commission (TJRC) was established. From the perspective of an insider and academic expert, The Kenyan TJRC: An Outsider's View from the Inside reveals for the first time the debates and decisions made within the Commission, including how the Kenyan Commission became the first such commission to recommend that its Chair be prosecuted for gross violations of human rights. This book is one of the few insider accounts of a truth commission, and one of the few that reflects on the limitations and opportunities of such a commission. The Kenyan TJRC provides lessons and recommendations to those interested in addressing historical injustices through a truth commission process. The full copy of the Final Report of the Kenyan TJRC, along with other supporting documents, can be found at the following site: https://digitalcommons.law.seattleu.edu/tjrc/
"Ambitious in scope, yet full of detailed and incisive criticisms of specific cases and theological principles, "Getting Over Equality" is an uncommon work of truly interdisciplinary scholarship. The provocative legal and theological theses make it a welcome addition to contemporary scholarship in both fields and a recommended text from any course that considers law and religion in the American context."--"The Journal of Religion"
Questions of religious freedom continue to excite passionate public debate. Proposals involving school prayer and the posting of the Ten Commandments in schools and courtrooms perennially spur controversy. But there is also a sense that the prevailing discourse is exhausted, that no one seems to know how to think about religious freedom in a way that moves beyond our stale, counterproductive thinking on this issue.
In Getting over Equality, Steven D. Smith, one of the most important voices now writing about religious liberty, provocatively contends that we must get over our presumptionmistakenly believed to be rooted in the Constitutionthat all religions are equally true and virtuous and "authentically American." Smith puts forth an alternative view, that the courts should promote an ideal of tolerance rather than equality and neutrality. Examining such controversial examples as the animal sacrifice case, the peyote case, and the problem of aid to parochial schools, Smith delineates a way for us to tolerate and respect contrary creeds without sacrificing or diluting our own beliefsand without pretending to believe in a spurious "equality" among the variety of diverse faiths.
With the specter of prosecution after his term is over and the possibility of disbarment in Arkansas hanging over President Clinton, the Clinton-Lewinsky scandal and the events that have followed it show no sign of abating. The question has become what to do, and how to think, about those eight months. Did the President lie or was it plausible that he had truthfully testified to no sexual relationship? Was the job search for Monica just help for a friend or a sinister means of obtaining silence? Even if all the charges were true, did impeachment follow or was censure enough? And what are the lasting repercussions on the office of the Presidency?
Aftermath: The Clinton Impeachment and the Presidency in the Age of Political Spectacle takes a multi-disciplinary approach to analyze the Clinton impeachment from political perspectives across the spectrum. The authors attempt to tease out the meanings of the scandal from the vantage point of law, religion, public opinion, and politics, both public and personal. Further, the impeachment itself is situated broadly within the contemporary American liberal state and mined for the contradictory possibilities for reconciliation it reveals in our culture.
Contributors: David T. Canon, John Cooper, Drucilla Cornell, Jean Bethke Elshtain, Robert W. Gordon, Lawrence Joseph, Leonard V. Kaplan, David Kennedy, Kenneth R. Mayer, Beverly I. Moran, Father Richard John Neuhaus, David Novak, Linda Denise Oakley, Elizabeth Rapaport, Lawrence Rosen, Eric Rothstein, Aviam Soifer, Lawrence M. Solan, Cass R. Sunstein, Stephen Toulmin, Leon Trakman, Frank Tuerkheimer, Mark V. Tushnet, Andrew D. Weiner, Robin L. West.
Studies this famous case of judicial failure, and discusses the legal bases of slavery, the debate over the Constitution, and the dispute over slavery and continental expansion.
"Works such as A Law of Her Own expose the injustices in our
society, provide different perspectives, and stimulate discussion.
. . . Forell and Matthews' contribution to the debate should not be
Despite the apparent progress in women's legal status, the law retains a profoundly male bias, and as such contributes to the pervasive violence and injustice against women.
In A Law of Her Own, the authors propose to radically change law's fundamental paradigm by introducing a "reasonable woman standard" for measuring men's behavior. Advocating that courts apply this standard to the conduct of men-and women-in legal settings where women are overwhelmingly the injured parties, the authors seek to eliminate the victimization and objectification of women by dismantling part of the legal structure that supports their subordination.
A woman-based legal standard-focusing on respect for bodily integrity, agency, and autonomy-would help rectify the imbalance in how society and its legal system view sexual and gender-based harassment, rape, stalking, battery, domestic imprisonment, violence, and death.
Examining the bias of the existing "reasonable person" standard through analysis of various court cases and judicial decisions, A Law of Her Own aims to balance the law to incorporate women's values surrounding sex and violence.
In recent years, 'nudge units' or 'behavioral insights teams' have been created in the United States, the United Kingdom, Germany, and other nations. All over the world, public officials are using the behavioral sciences to protect the environment, promote employment and economic growth, reduce poverty, and increase national security. In this book, Cass R. Sunstein, the eminent legal scholar and best-selling co-author of Nudge (2008), breaks new ground with a deep yet highly readable investigation into the ethical issues surrounding nudges, choice architecture, and mandates, addressing such issues as welfare, autonomy, self-government, dignity, manipulation, and the constraints and responsibilities of an ethical state. Complementing the ethical discussion, The Ethics of Influence: Government in the Age of Behavioral Science contains a wealth of new data on people's attitudes towards a broad range of nudges, choice architecture, and mandates.
Can authoritarian regimes use democratic institutions to strengthen and solidify their rule? The Chinese government has legislated some of the most protective workplace laws in the world and opened up the judicial system to adjudicate workplace conflict, emboldening China's workers to use these laws. This book examines these patterns of legal mobilization, showing which workers are likely to avail themselves of these new protections and find them effective. Gallagher finds that workers with high levels of education are far more likely to claim these new rights and be satisfied with the results. However, many others, left disappointed with the large gap between law on the books and law in reality, reject the courtroom for the streets. Using workers' narratives, surveys, and case studies of protests, Gallagher argues that China's half-hearted attempt at rule of law construction undermines the stability of authoritarian rule. New workplace rights fuel workers' rising expectations, but a dysfunctional legal system drives many workers to more extreme options, including strikes, demonstrations and violence.
The complete text of dissenting opinions of those who saw the Constitution as a threat are collected in this volume with Convention debates, commentaries, and lists that cross-reference to its companion Signet Classics volume "The Federalist Papers."
The Crown stands at the heart of the New Zealand, British, Australian and Canadian constitutions as the ultimate source of legal authority and embodiment of state power. A familiar icon of the Westminster model of government, it is also an enigma. Even constitutional experts struggle to define its attributes and boundaries: who or what is the Crown and how is it embodied? Is it the Queen, the state, the government, a corporation sole or aggregate, a relic of feudal England, a metaphor, or a mask for the operation of executive power? How are its powers exercised? How have the Crowns of different Commonwealth countries developed? The Shapeshifting Crown combines legal and anthropological perspectives to provide novel insights into the Crown's changing nature and its multiple, ambiguous and contradictory meanings. It sheds new light onto the development of the state in postcolonial societies and constitutional monarchy as a cultural system.
Why has there been a human rights backlash in Russia despite the country having been part of the European human rights protection system since the late 1990s? To what extent does Russia implement judgments of the Strasbourg Court, and to what extent does it resist the implementation? This fascinating study investigates Russia's turbulent relationship with the European Court of Human Rights and examines whether the Strasbourg court has indeed had the effect of increasing the protection of human rights in Russia. Researchers and scholars of law and political science with a particular interest in human rights and Russia will benefit from this in-depth exploration of the background of this subject.
Article 226 EC is the central mechanism of enforcement in the EC Treaty, and has remained unchanged since the original Treaty of Rome. It provides the European Commission, as guardian of the Treaty, with a broad power of policing Member States? conduct. Article 226 has been traditionally characterised as an arena of secretive negotiation focused on the sole function of effective enforcement. This study seeks to move beyond this approach by characterising Article 226 as a multi-functional mechanism within the Treaty. It does this by examining the central mechanism of enforcement through the normative lenses of legitimacy, good administration and good governance.
Centralised Enforcement, Legitimacy and Good Governance in the EU is interdisciplinary in nature, examining law in its political context. It focuses on how the institutions interact and react to competing policy pressures, and explores the tensions that lie at the heart of legitimacy in the actions of public actors by engaging with concepts such as democracy, legitimacy and good administration.
Scholars and policy-makers whose work explores Article 226 will find this work especially relevant. It will also appeal to those who are interested in enforcement and regulation in the international/EU arena, as well as those whose work considers concepts such as good governance, legitimacy, and accountability in the EU. It is also relevant to scholars engaged in the study of institutions and processes of interaction and change.
This book presents a timely assessment of the impact of history, politics and economics in shaping the Singapore Constitution, going beyond the descriptive narrative, the authors will cast a critical eye over the developments of the last 40 years.
Alexander Hamilton is best known as the United States’ first Secretary of the Treasury and the author of the majority of The Federalist Papers, a series of essays that outlined the basic concepts and premises of the U.S. Constitution. Since the founding of the nation, these essays have been used by the U.S. Supreme Court as an authoritative guide to the intentions of the Founding Fathers in cases involving constitutional interpretation. Included in this volume are five of the most important essays from The Federalist Papers, plus personal correspondence and public statements from across Hamilton’s career as a statesman.
As demonstrated in any conflict, war is violent and causes grave harms to innocent persons, even when fought in compliance with just war criteria. In this book, Rosemary Kellison presents a feminist critique of just war reasoning, with particular focus on the issue of responsibility for harm to noncombatants. Contemporary just war reasoning denies the violence of war by suggesting that many of the harms caused by war are necessary, though regrettable, injuries for which inflicting agents bear no responsibility. She challenges this narrow understanding of responsibility through a feminist ethical approach that emphasizes the relationality of humans and the resulting asymmetries in their relative power and vulnerability. According to this approach, the powerful individual and collective agents who inflict harm during war are responsible for recognizing and responding to the vulnerable persons they harm, and thereby reducing the likelihood of future violence. Kellison's volume goes beyond abstract theoretical work to consider the real implications of an important ethical problem.
Seldom has American law seen a more towering figure than Chief Justice John Marshall. Indeed, Marshall is almost universally regarded as the "father of the Supreme Court" and "the jurist who started it all."
Yet even while acknowledging the indelible stamp Marshall put on the Supreme Court, it is possible--in fact necessary--to examine the pre-Marshall Court, and its justices, to gain a true understanding of the origins of American constitutionalism. The ten essays in this tightly edited volume were especially commissioned for the book, each by the leading authority on his or her particular subject. They examine such influential justices as John Jay, John Rutledge, William Cushing, James Wilson, John Blair, James Iredell, William Paterson, Samuel Chase, Oliver Ellsworth, and Bushrod Washington. The result is a fascinating window onto the origins of the most powerful court in the world, and on American constitutionalism itself.
When we talk about what "freedom of speech" means in America, the discussion almost always centers on freedom rather than speech. Taking for granted that speech is an unambiguous and stable category, we move to considering how much freedom speech should enjoy. But, as Randall Bezanson demonstrates in "Speech Stories," speech is a much more complicated and dynamic notion than we often assume. In an age of rapidly accelerated changes in discourse combined with new technologies of communication, the boundaries and substance of what we traditionally deem speech are being reconfigured in novel and confusing ways.
In order to spark thought, discussion, and debate about these complexities and ambiguities, Bezanson probes the "stories" behind seven controversial free speech cases decided by the Supreme Court. These stories touch upon the most controversial and significant of contemporary first amendment issues: government restrictions on hate speech and obscene and indecent speech; pornography and the subordination of women; the constitutionality of campaign finance reform; and the treatment to be accorded new technologies of communication under the Constitution. The result is a provocative engagement of the reader in thinking about the puzzles and paradoxes of our commitment to free expression.
The first wave of democratization in the United States - the removal of property and taxpaying qualifications for the right to vote - was accompanied by the disenfranchisement of African American men, with the political actors most supportive of the former also the most insistent upon the latter. The United States is not unique in this respect: other canonical cases of democratization also saw simultaneous expansions and restrictions of political rights, yet this pattern has never been fully detailed or explained. Through case studies of the USA, the UK, and France, Disenfranchising Democracy offers the first cross-national account of the relationship between democratization and disenfranchisement. It develops a political institutional perspective to explain their co-occurrence, focusing on the politics of coalition-building and the visions of political community coalitions advance in support of their goals. Bateman sheds new light on democratization, connecting it to the construction of citizenship and cultural identities.
Who controls how one's identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet age. Jennifer Rothman uses the right of publicity-a little-known law, often wielded by celebrities-to answer that question, not just for the famous but for everyone. In challenging the conventional story of the right of publicity's emergence, development, and justifications, Rothman shows how it transformed people into intellectual property, leading to a bizarre world in which you can lose ownership of your own identity. This shift and the right's subsequent expansion undermine individual liberty and privacy, restrict free speech, and suppress artistic works. The Right of Publicity traces the right's origins back to the emergence of the right of privacy in the late 1800s. The central impetus for the adoption of privacy laws was to protect people from "wrongful publicity." This privacy-based protection was not limited to anonymous private citizens but applied to famous actors, athletes, and politicians. Beginning in the 1950s, the right transformed into a fully transferable intellectual property right, generating a host of legal disputes, from control of dead celebrities like Prince, to the use of student athletes' images by the NCAA, to lawsuits by users of Facebook and victims of revenge porn. The right of publicity has lost its way. Rothman proposes returning the right to its origins and in the process reclaiming privacy for a public world.
EU equality law is multidimensional in being based on different rationales and concepts. Consequently, the concept of discrimination has become fragmented, with different instruments envisaging different scopes of protection. This raises questions as to the ability of EU law to address the situation of persons excluded on a number of grounds. This edited collection addresses the increasing complexity of European Equality Law from jurisprudential, sociological and political science perspectives. Internationally renowned researchers from Scandinavian, Continental and Central European countries and Britain analyse consequences of multiplying discrimination grounds within EU equality law, considering its multidimensionality and intersectionality. The contributors to the volume theorise the move from formal to substantive equality law and its interrelation to new forms of governance, demonstrating the specific combination of non-discrimination law with welfare state models which reveal the global implications of the European Union. The book will be of interest to academics and policy makers all over the world, in particular to those researching and studying law, political sciences and sociology with an interest in human rights, non discrimination law, contract and employment law or European studies.
To many, the rejections of the Constitutional Treaty by Dutch and French voters in 2005 came as a shock. However, given the many tensions and the many unresolved issues it was quite unsurprising. The challenges facing the Constitutional debate go to the core of the European integration process as they have to do with the terms on which to establish a post-national political order. This book deals with four themes which make up the main sources of the `constitutional crisis': The problem of the rule of law in a context of governance beyond the nation state The problem of the social deficit of the Union The problem of identity and collective memories The problem of institutionalizing post-national democracy. These themes constitute the unfinished agenda of the European integration process. Law, Democracy and Solidarity in a Post-national Union is based on the efforts of a collection of top scholars in the fields of Law, Political Science, Sociology and Economics, and will appeal to students and scholars of political science, the European Union and European studies.
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