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To what extent do courts make social and public policy and influence policy change? This innovative text analyzes this question generally and in seven distinct policy areas that play out in both federal and state courts-tax policy, environmental policy, reproductive rights, sex equality, affirmative action, school finance, and same-sex marriage. The authors address these issues through the twin lenses of how state and federal courts must and do interact with the other branches of government and whether judicial policy-making is a form of activist judging. Each chapter uncovers the policymaking aspects of judicial process by investigating the current state of the law, the extent of court involvement in policy change, the responses of other governmental entities and outside actors, and the factors which influenced the degree of implementation and impact of the relevant court decisions. Throughout the book, Howard and Steigerwalt examine and analyze the literature on judicial policy-making as well as evaluate existing measures of judicial ideology, judicial activism, court and legal policy formation, policy change and policy impact. This unique text offers new insights and areas to research in this important field of American politics.
After the 1994 genocide in Rwanda, victims, perpetrators, and the country as a whole struggled to deal with the legacy of the mass violence. The government responded by creating a new version of a traditional grassroots justice system called gacaca. Bert Ingelaere, based on his observation of two thousand gacaca trials, offers a comprehensive assessment of what these courts set out to do, how they worked, what they achieved, what they did not achieve, and how they affected Rwandan society. Weaving together vivid firsthand recollections, interviews, and trial testimony with systematic analysis, Ingelaere documents how the gacaca shifted over time from confession to accusation, from restoration to retribution. He precisely articulates the importance of popular conceptions of what is true and just. Marked by methodological sophistication, extraordinary evidence, and deep knowledge of Rwanda, this is an authoritative, nuanced, and bittersweet account of one of the most important experiments in transitional justice after mass violence.
First published in September 1992, the book traces the nature and development of the fundamental legal relationships among slaves, masters, and third parties. It shows how the colonial and antebellum Southern judges and legislators accommodated slavery's social relationships into the common law, and how slave law evolved in different states over time in response to social political, economic, and intellectual developments.
The book states that the law of slavery in the US South treated slaves both as people and property. It reconciles this apparent contradiction by demonstrating that slaves were defined in the law as items of human property without any legal rights. When the lawmakers recognized slaves as people, they burdened slaves with added legal duties and disabilities. This epitomized in legal terms slavery's oppressive social relationships. The book also illustrates how cases in which the lawmakers recognized slaves as people legitimized slavery's inhumanity. References in the law to the legal humanity of people held as slaves are shown to be rhetorical devices and cruel ironies that regulated the relative rights of the slaves? owners and other free people that were embodied in people held as slaves. Thus, it is argued that it never makes sense to think of slave legal rights. This was so even when the lawmakers regulated the individual masters? rights to treat their slaves as they wished. These regulations advanced policies that the lawmakers perceived to be in the public interest within the context of a slave society.
On February 1, 1960, four African American college students entered the Woolworth department store in Greensboro, North Carolina, and sat down at the lunch counter. This lunch counter, like most in the American South, refused to serve black customers. The four students remained in their seats until the store closed. In the following days, they returned, joined by growing numbers of fellow students. These "sit-in" demonstrations soon spread to other southern cities, drawing in thousands of students and coalescing into a protest movement that would transform the struggle for racial inequality. The Sit-Ins tells the story of the student lunch counter protests and the national debate they sparked over the meaning of the constitutional right of all Americans to equal protection of the law. Christopher W. Schmidt describes how behind the now-iconic scenes of African American college students sitting in quiet defiance at "whites only" lunch counters lies a series of underappreciated legal dilemmas--about the meaning of the Constitution, the capacity of legal institutions to remedy different forms of injustice, and the relationship between legal reform and social change. The students' actions initiated a national conversation over whether the Constitution's equal protection clause extended to the activities of private businesses that served the general public. The courts, the traditional focal point for accounts of constitutional disputes, played an important but ultimately secondary role in this story. The great victory of the sit-in movement came not in the Supreme Court, but in Congress, with the passage of the Civil Rights Act of 1964, landmark legislation that recognized the right African American students had claimed for themselves four years earlier. The Sit-Ins invites a broader understanding of how Americans contest and construct the meaning of their Constitution.
Bringing armed conflicts to an end is difficult; restoring a lasting peace can be considerably harder. Reclaiming Everyday Peace addresses the effectiveness and impact of local level interventions on communities affected by war. Using an innovative methodology to generate participatory numbers, Pamina Firchow finds that communities saturated with external interventions after war do not have substantive higher levels of peacefulness according to community-defined indicators of peace than those with lower levels of interventions. These findings suggest that current international peacebuilding efforts are not very effective at achieving peace by local standards because disproportionate attention is paid to reconstruction, governance and development assistance with little attention paid to community ties and healing. Firchow argues that a more bottom up approach to measuring the effectiveness of peacebuilding is required. By finding ways to effectively communicate local community needs and priorities to the international community, efforts to create an atmosphere for an enduring peace are possible.
This book examines the many attempts over the last three decades to revise Japan's constitution. As the book shows, these attempts at revision have been relatively conservative, aiming to embed in the constitution visions of a different future for Japan. Specific reforms advocated include: enabling Japan to have a more proactive foreign policy, more independent of the US-Japan alliance; strengthening the role of the Emperor, and excluding female succession to the throne; and emphasising more citizens' duties, rather than their rights, in order to strengthen community and societal cohesion. By far the most comprehensive analysis of constitutional reform debate in Japan to be published to date, it offers translations and analysis of more than two dozen amendment proposals. The book provides a comprehensive analysis of the details of the reform proposals, charts the so far unsuccessful attempts to bring about the reforms, discusses the different groups arguing for reform, and assesses the nature of the proposed reforms. It categorises different versions of the vision for Japan's future and shows that only a few campaigners are advocating anything like a return to Japan's pre-war constitution.
Government Accountability: Australian Administrative Law Sources and Materials is a companion text to the second edition of Government Accountability: Australian Administrative Law. The casebook follows the structure of the textbook and provides a sophisticated and in-depth introduction to the principal areas of administrative law taught in Australia. Extracts from primary materials - including cases, legislation and judicial review - provide readers with an understanding of the key principles of administrative law and demonstrate how these mechanisms operate in practice. Case extracts provide a clear account of the facts, issues and statutory provisions considered by the courts. Extracts from secondary sources, including from parliamentary reports and publications by leading commentators in this field, further elucidate key concepts and controversies. Written by experts with substantial teaching and research experience, this is an essential text that will equip students with the tools to think critically and successfully apply the law to practice.
Diplomacy is used primarily to advance the interests of a state beyond its borders, within a set of global norms intended to assure a degree of international harmony. As a result of internal and international armed conflicts, the need to negotiate peace through an emerging system of international humanitarian and criminal law has required nations to use diplomacy to negotiate 'peace versus justice' trade-offs. Justice and Diplomacy is the product of a research project sponsored by the Academie Diplomatique Internationale and the International Bar Association, and focuses on specific moments of collision or contradiction in diplomatic and judicial processes during the humanitarian crises in Bosnia, Rwanda, Kosovo, Darfur, and Libya. The five case studies present critical issues at the intersection of justice and diplomacy, including the role of timing, signalling, legal terminology, accountability, and compliance. Each case study focuses on a specific moment and dynamic, highlighting the key issues and lessons learned.
It is no longer controversial that the American political system has become deeply dysfunctional. Today, only slightly more than a quarter of Americans believe the country is heading in the right direction, while sixty-three percent believe we are on a downward slope. The top twenty words used to describe the past year include "chaotic," "turbulent," and "disastrous." Donald Trump's improbable rise to power and his 2016 Electoral College victory placed America's political dysfunction in an especially troubling light, but given the extreme polarization of contemporary politics, the outlook would have been grim even if Hillary Clinton had won. The greatest upset in American presidential history is only a symptom of deeper problems of political culture and constitutional design. Democracy and Dysfunction brings together two of the leading constitutional law scholars of our time, Sanford Levinson and Jack M. Balkin, in an urgently needed conversation that seeks to uncover the underlying causes of our current crisis and their meaning for American democracy. In a series of letters exchanged over a period of two years, Levinson and Balkin travel--along with the rest of the country--through the convulsions of the 2016 election and Trump's first year in office. They disagree about the scope of the crisis and the remedy required. Levinson believes that our Constitution is fundamentally defective and argues for a new constitutional convention, while Balkin, who believes we are suffering from constitutional rot, argues that there are less radical solutions. As it becomes dangerously clear that Americans--and the world--will be living with the consequences of this pivotal period for many years to come, it is imperative that we understand how we got here--and how we might forestall the next demagogue who will seek to beguile the American public.
"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.
That a constitution should express the will of 'the people' is a long-standing principle, but the identity of 'the people' has historically been narrow. Women, in particular, were not included. A shift, however, has recently occurred. Women's participation in constitution-making is now recognised as a democratic right. Women's demands to have their voices heard in both the processes of constitution-making and the text of their country's constitution, are gaining recognition. Campaigning for inclusion in their country's constitution-making, women have adopted innovative strategies to express their constitutional aspirations. This collection offers, for the first time, comprehensive case studies of women's campaigns for constitutional equality in nine different countries that have undergone constitutional transformations in the 'participatory era'. Against a richly-contextualised historical and political background, each charts the actions and strategies of women participants, both formal and informal, and records their successes, failures and continuing hopes for constitutional equality.
Administrative Law Text and Materials combines carefully selected extracts from key cases, articles, and other sources with detailed commentary. Aimed at undergraduates studying administrative law, it provides comprehensive coverage of the subject and brings together in one volume the best features of a textbook and a casebook. Rather than simply presenting administrative law as a straightforward body of legal rules, this engaging, critical text considers the subject as an expression of underlying constitutional and other policy concerns, which fundamentally shape the relationship between the citizen and the state. The result is a fascinating account of a subject of crucial importance. Online Resource Centre The book is supported by online an Online Resource Centre, offering the following useful resources: -Updates which cover all the legal developments since publication -'Oxford NewsNow' RSS feeds provide constantly refreshed links to the latest relevant new stories -Interactive timeline of key dates in British political history -Annotated web links
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.
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.
A radical reconstruction of the founders' debate over slavery and the Constitution, by the best-selling, award-winning author of The Rise of American Democracy. Americans revere the Constitution even as they argue fiercely over its original toleration of slavery. Some historians have charged that slaveholders actually enshrined human bondage at the nation's founding. The acclaimed political historian Sean Wilentz shares the dismay but sees the Constitution and slavery differently. Although the proslavery side won important concessions, he asserts, antislavery impulses also influenced the framers' work. Far from covering up a crime against humanity, the Constitution restricted slavery's legitimacy under the new national government. In time, that limitation would open the way for the creation of an antislavery politics that led to Southern secession, the Civil War, and Emancipation. Wilentz's controversial and timely reconsideration upends orthodox views of the Constitution. He describes the document as a tortured paradox that abided slavery without legitimizing it. This paradox lay behind the great political battles that fractured the nation over the next seventy years. As Southern Fire-eaters invented a proslavery version of the Constitution, antislavery advocates, including Abraham Lincoln and Frederick Douglass, proclaimed antislavery versions based on the framers' refusal to validate what they called "property in man." No Property in Man invites fresh debate about the political and legal struggles over slavery that began during the Revolution and concluded with the Confederacy's defeat. It drives straight to the heart of the most contentious and enduring issue in all of American history.
The reach of free movement within the EU Internal Market and what constitutes a restriction are the topics of this book. For many years the tension between free movement and restrictions have been the subject of intense discussion and controversy, and this includes the constitutional reach of the rights conferred by the Treaty of Lisbon. Anything that makes movement less attractive or more burdensome may constitute a restriction. Restrictions may be justified, but only if proportionate. The reach of free movement is fundamental to the Internal Market, both for the economic constitution and increasingly for individual rights in a European legal order that provides constitutional guarantees for rights, exceeding those of free movement. The interaction between fundamental rights and fundamental freedoms to movement distinguishes the EU legal order from the national legal systems. The book falls into four parts, `The reach of free movement', `Justifications and Proportionality', `Fundamental rights', and `Looking Abroad'. The clear discussion of the fundamentals and dilemmas regarding the subject of this book should prove useful for academics, practitioners, graduate students as well as EU officials and judges wishing to stay updated on the ongoing scholarly debate regarding relevance to case law. Mads Andenas is Professor at the Department of Private Law, University of Oslo and at the Institute of Advanced Legal Studies, School of Advanced Studies, University of London. Tarjei Bekkedal is Professor at the Centre for European Law, University of Oslo and the Chair of the Norwegian Association for European Law. Luca Pantaleo is a Lecturer in EU law at The Hague University of Applied Sciences, who obtained a Ph.D. in International and EU Law in 2013 at the University of Macerata in Italy, and who was previously a Senior Researcher at the T.M.C. Asser Institute and Postdoctoral researcher at the University of Luxembourg.
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.
The eighth edition of Immigration and Asylum Law continues to provide students with expert coverage of case law and legislation, along with dynamic analysis of the political context and social impact of the law, and a strong focus on human rights. Including key case summaries, end-of-chapter questions, and further reading, the book deftly guides the reader through this fascinating and constantly developing area of law, using clear and accessible language throughout. An ideal guide for all students of the subject. Online resources This book is accompanied by online resources designed to support the book: - Updates and developments in the law since the book published - Problem questions to test knowledge and develop analytical skills - Guidance on how to answer the end-of-chapter questions - A selection of web links to support additional research
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.
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.
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