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Can harsh interrogation techniques and torture ever be morally justified for a nation at war or under the threat of imminent attack? In the aftermath of the September 11, 2001, terrorist strikes, the United States and other liberal democracies were forced to grapple once again with the issue of balancing national security concerns against the protection of individual civil and political rights. This question was particularly poignant when US forces took prisoners in Afghanistan and Iraq who arguably had information about additional attacks. In this volume, ethicist Paul Lauritzen takes on ethical debates about counterterrorism techniques that are increasingly central to US foreign policy and discusses the ramifications for the future of interrogation. Lauritzen examines how doctors, lawyers, psychologists, military officers, and other professionals addressed the issue of the appropriate limits in interrogating detainees. In the case of each of these professions, a vigorous debate ensued about whether the interrogation policy developed by the Bush administration violated codes of ethics governing professional practice. These codes are critical, according to Lauritzen, because they provide resources for democracies and professionals seeking to balance concerns about safety with civil liberties, while also shaping the character of those within these professional guilds. This volume argues that some of the techniques used at Guantanamo Bay and elsewhere were morally impermissible; nevertheless, the healthy debates that raged among professionals provide hope that we may safeguard human rights and the rule of law more effectively in the future.
In 1914 the British-built and Japanese-owned steamship Komagata Maru left Hong Kong for Vancouver carrying 376 Punjabi migrants. Chartered by railway contractor and purported rubber planter Gurdit Singh, the ship and its passengers were denied entry into Canada and two months later were deported to Calcutta. In Across Oceans of Law Renisa Mawani retells this well-known story of the Komagata Maru. Drawing on "oceans as method"-a mode of thinking and writing that repositions land and sea-Mawani examines the historical and conceptual stakes of situating histories of Indian migration within maritime worlds. Through close readings of the ship, the manifest, the trial, and the anticolonial writings of Singh and others, Mawani argues that the Komagata Maru's landing raised urgent questions regarding the jurisdictional tensions between the common law and admiralty law, and, ultimately, the legal status of the sea. By following the movements of a single ship and bringing oceans into sharper view, Mawani traces British imperial power through racial, temporal, and legal contests and offers a novel method of writing colonial legal history.
A sweeping historical and political account of how our present-day policy debates around citizenship and equality came to be The landmark Supreme Court decision in June 2015 legalizing the right to same-sex marriage marked a major victory in gay and lesbian rights in the United States. Once subject to a patchwork of laws granting legal status to same-sex couples in some states and not others, gay and lesbian Americans now enjoy full legal status for their marriages wherever they travel or reside in the country. For many, the Supreme Court's ruling means that gay and lesbian citizens are one step closer to full equality with the rest of America. In Fragmented Citizens, Stephen M. Engel contends that the present moment in gay and lesbian rights in America is indeed one of considerable advancement and change-but that there is still much to be done in shaping American institutions to recognize gays and lesbians as full citizens. With impressive scope and fascinating examples, Engel traces the relationship between gay and lesbian individuals and the government from the late nineteenth century through the present. Engel shows that gays and lesbians are more accurately described as fragmented citizens. Despite the marriage ruling, Engel argues that LGBT Americans still do not have full legal protections against workplace, housing, family, and other kinds of discrimination. There remains a continuing struggle of the state to control the sexuality of gay and lesbian citizens-they continue to be fragmented citizens. Engel argues that understanding the development of the idea of gay and lesbian individuals as `less-than-whole' citizens can help us make sense of the government's continued resistance to full equality despite massive changes in public opinion. Furthermore, he argues that it was the state's ability to identify and control gay and lesbian citizens that allowed it to develop strong administrative capacities to manage all of its citizens in matters of immigration, labor relations, and even national security. The struggle for gay and lesbian rights, then, affected not only the lives of those seeking equality but also the very nature of American governance itself. Fragmented Citizens is a sweeping historical and political account of how our present-day policy debates around citizenship and equality came to be.
The Immigration Act of 1965 was one of the most consequential laws ever passed in the United States and immigration policy continues to be one of the most contentious areas of American politics. As a "nation of immigrants," the United States has a long and complex history of immigration programs and controls which are deeply connected to the shape of American society today. This volume makes sense of the political history and the social impacts of immigration law, showing how legislation has reflected both domestic concerns and wider foreign policy. John S. W. Park examines how immigration law reforms have inspired radically different responses across all levels of government, from cooperation to outright disobedience, and how they continue to fracture broader political debates. He concludes with an overview of how significant, on-going challenges in our interconnected world, including "failed states" and climate change, will shape American migrations for many decades to come.
aA thoughtful critique of identity politics in the nationas law
schools. . . . It is the great merit of Mr. Subotnikas work that he
moves us toward a single standard for judging scholarship and thus
helps create the conditions for the common enterprise of explaining
our social worldaand even, if we are lucky, improving it.a
aMany outside the universities think that political correctness
faded from the campus in the mid-nineties. Dan Subotnik shows that
it never went away: it got tenure. This book is beautifully
written, consistently enjoyable, and replete with wonderful
anecdotes and memorable humor. It is also thoroughly researched and
aThis is the kind of fearless work that will read as common
sense a hundred years from now, to readers who will be as perplexed
by much of our current race writing as we are today by medieval
tracts about alchemy.a
aThe left knows how to dish out criticism. Can it take it? With
the publication of "Toxic Diversity," we'll find out. More subtle
and searching than other critiques of critical race theory,
critical legal studies, and feminist legal theory, Dan Subotnikas
book poses challenges that all progressives, myself included, will
need to consider.a
"An entertaining and enlightening excursion into the world of critical race and gender theory. Even those who disagree with Subotnik's critique will appreciate the value of his analysis. Toxic Diversity is aworthwhile contribution to the dialogue over diversity in its many forms."--Steven G. Gey, Florida State University College of Law
"This is not only an important book but also an engaging and
entertaining one. Subotnik offers much to both think about and
Toxic Diversity offers an invigorating view of race, gender, and law in America. Analyzing the work of preeminent legal scholars such as Patricia Williams, Derrick Bell, Lani Guinier, and Richard Delgado, Dan Subotnik argues that race and gender theorists poison our social and intellectual environment by almost deliberately misinterpreting racial interaction and data and turning white males into victimizers. Far from energizing women and minorities, Subotnik concludes, theorists divert their energies from implementing America's social justice agenda.
Insisting, in the words of James Baldwin, that anot everything that is faced can be changed, but nothing can be changed until it is faced, a and that thoughtful Americans regardless of race and gender can handle frank conversations about difficult topics, Subotnikas critique of race and gender theory pulls no punches as it confronts such inflammatory issues as single parenthood, the merit system in academic and business settings, gender privilege in the classroom, and crime.
Not so long ago, being aggressively "pro-free speech" was as closely associated with American political liberalism as being pro-choice, pro-affirmative action, or pro-gun control. With little notice, this political dynamic has been shaken to the core. The Right's First Amendment examines how conservatives came to adopt and co-opt constitutional free speech rights. In the 1960s, free speech on college campuses was seen as a guarantee for social agitators, hippies, and peaceniks. Today, for many conservatives, it represents instead a crucial shield that protects traditionalists from a perceived scourge of political correctness and liberal oversensitivity. Over a similar period, free market conservatives have risen up to embrace a once unknown, but now cherished, liberty: freedom of commercial expression. What do these changes mean for the future of First Amendment interpretation? Wayne Batchis offers a fresh entry point into these issues by grounding his study in both political and legal scholarship. Surveying six decades of writings from the preeminent conservative publication National Review alongside the evolving constitutional law and ideological predispositions of Supreme Court justices deciding these issues, Batchis asks the conservative political movement to answer to its judicial logic, revealing how this keystone of our civic American beliefs now carries a much more complex and nuanced political identity.
In its fourth edition, this fully revised and updated survey covers the rights of lesbians, gay men, bisexuals, and transgender people under present law, specifically in regard to freedom of speech and association, employment, housing, the military, family and parenting, and HIV disease. Utilizing an accessible question-and-answer format and nontechnical language, The Rights of Lesbians, Gay Men, Bisexuals, and Transgender People provides an overview for understanding both the general themes in legal doctrine and the way in which individuals can begin the process of asserting rights provided by the law.
The volume is a useful starting point for people facing discrimination or legal uncertainty and helps readers navigate the turbulent and constantly changing waters of the laws regarding sexual orientation and gender identity. New to this edition are two appendixes that include contact information for national and regional LGBT legal groups, an overview of the legal system to explain some of the terms and concepts that appear throughout the book, and a summary of highlights of the law state by state.
The Magna Carta is one of the most celebrated documents in English history and one of the British Library's greatest treasures. But despite this, the reinterpretations of it since 1215 have tended to obscure its real meaning for King John and his baronial opponents. Magna Carta was not intended to be a lasting declaration of legal principle, still less an embryonic code of human rights. It was a practical solution to a political crisis and it served the interests of the highest ranks of feudal society by reasserting the power of custom to limit arbitrary behaviour by the king. This work explores the context in which Magna Carta was issued to discover what it really meant to its creators and how it came to be an iconic historical document. This updated edition includes full colour illustrations.
Federal agencies issue thousands of regulations each year under delegated authority from Congress. Over the past 70 years, Congress and various Presidents have created a set of procedures agencies must follow to issue these regulations, some of which contain requirements for the calculation and consideration of costs, benefits, and other economic effects of regulations. In recent years, many Members of Congress have expressed an interest in various regulatory reform efforts that would change the current set of rulemaking requirements, including requirements to estimate costs and benefits of regulations. As part of this debate, it has become common for supporters of regulatory reform to comment on the total cost of federal regulation. This book discusses methods of estimating the total cost of federal regulations. Furthermore, the book serves to inform the congressional debate over rulemaking by analysing different ways to measure federal rulemaking activity; describes the existing requirements for cost-benefit and other types of analysis in the federal rulemaking process; and discusses options for changing the current set of analytical requirements.
Article V of the Constitution allows two-thirds majorities of both houses of Congress to propose amendments to the document and a three-fourths majority of the states to ratify them. Scholars and frustrated advocates of constitutional change have often criticized this process for being too difficult. Despite this, state legislatures have yet to use the other primary method that Article V outlines for proposing amendments: it permits two-thirds of the state legislatures to petition Congress to call a convention to propose amendments that, like those proposed by Congress, must be ratified by three-fourths of the states. In this book, John R. Vile surveys more than two centuries of scholarship on Article V and concludes that the weight of the evidence (including a much-overlooked Federalist essay) indicates that states and Congress have the legal right to limit the scope of such conventions to a single subject and that political considerations would make a runaway convention unlikely. Charting a prudent course between those who fail to differentiate revolutionary change from constitutional change, those who fear ever using the Article V convention mechanism that the Framers clearly envisioned, and those who would vest total control of the convention in Congress, the states, or the convention itself, Vile's work will enhance modern debates on the subject.
Every day, in every court and tribunal, advocates represent us all - Crown and defendant, landlord and tenant, rich and poor, honest and false alike. What are the duties to court and client? This book surveys the role of advocates at every stage of their work.
In American history, students are taught about the three branches of government. Most of the time is spent learning about the Executive and the Legislative bodies, but the Judicial branch has had a monumental effect on the course of American history, and nowhere is this more apparent than in the area of civil rights.
Race and National Power: A Sourcebook of Black Civil Rights from 1862 to 1954 gathers together a collection of primary documents on the history of law and civil rights, specifically in regard to race. The sources covered include key Supreme Court decisions, some opinions from other courts as well, and texts written by ordinary people ? the victims and perpetrators of racism and the lawmakers who wrote the statutes the courts must interpret.
With helpful headnotes and introductions, Race and National Power: A Sourcebook of Black Civil Rights from 1862 to 1954 is the perfect resource for anyone studying legal history or race in America.
Traversing more than a century of American history, this book advances a new theory of congressional organization to explain why and how party dissidents rely on institutions of their own making, arguing that these intraparty organizations can radically shift the balance of power between party leaders and rank-and-file members. Intraparty organizations empower legislators of varying ideological stripes to achieve collective and coordinated action by providing selective incentives to cooperative members, transforming public-good policies into excludable accomplishments, and helping members to institute rules and procedures to promote group decision making. Drawing on rich archival evidence and interview data, the book details the challenges dissident lawmakers encounter when they face off against party leaders and their efforts to organize in response. Eight case studies complicate our understanding of landmark fights over rules reform, early twentieth-century economic struggles, mid-century battles over civil rights legislation, and contemporary debates over national health care and fiscal policy.
Preventive Detention and the Democratic State tracks the transformation of preventive detention from an emergency measure into an ordinary law enforcement tool in the democratic world. Historically, democracies used preventive detention only in the extraordinary circumstance in which the criminal justice system was impotent. They preferred criminal prosecution and its strict due process requirements to detaining people for a crime they may never commit. This book shows that major democracies have begun using detention as an insurance policy against dangerous people. In the process, they have embarked on a slippery slope that allows them to use preventive detention to bypass the criminal justice system. Already, detention has established a separate, inferior legal system for certain suspected criminals. Comparing preventive detention in India, England and the United States, the book brings to light its potentially dire consequences for the rule of law, due process rights and democratic principles based on the very real experiences of these countries.
Speaking to today's flourishing conversations on both law, morality, and religion, and the religious foundations of law, politics, and society, Common Law and Natural Law in America is an ambitious four-hundred-year narrative and fresh re-assessment of the varied American interactions of 'common law', the stuff of courtrooms, and 'natural law', a law built on human reason, nature, and the mind or will of God. It offers a counter-narrative to the dominant story of common law and natural law by drawing widely from theological and philosophical accounts of natural law, as well as primary and secondary work in legal and intellectual history. With consequences for today's natural-law proponents and critics alike, it explores the thought of the Puritans, Revolutionary Americans, and seminal legal figures including William Blackstone, Joseph Story, Christopher Columbus Langdell, Oliver Wendell Holmes, and the legal realists.
"Marcossen has written a good book. Its tone is appropriate, its arguments are provocative, and its subject matter is significant."--"The Law and Politics Book Review," Vol.12, No. 7
"Brilliantly dissecting Thomas' and his philosophical mentor Antonin Scalia's conservatism, Marcossen resembles a master debater delivering a crushing final summation."-- "Booklist," August 2002
"Without a doubt, this is one of the best pieces of
constitutional law scholarship published in some time."
Originalism is the practice of reviewing constitutional cases by seeking to discern the framers' and ratifiers' intent. Original Sin argues that the "jurisprudence of original intent," represented on the current Supreme Court by Justices Antonin Scalia and Clarence Thomas, has failed on its own terms. Attempts to determine the framers' intent have not brought greater determinacy and legitimacy to the process of constitutional interpretation. Instead, the method has been marked by the very flaws--including self-interested reasoning and the manipulation of doctrine--that originalists argue marred the jurisprudence of the judicial "activists" of the Warren Court.
Original Sin brings a rigorous review of the performance of the "new originalists" to the debate, applying their methodology to real cases. Marcosson focuses on the judicial decisions of Clarence Thomas, an avowed originalist who nevertheless advocates "color blind" readings of the Constitution which are at odds with the framers' ideas concerning anti-miscegenation and other laws. After critiquing what he sees as a troubling use of originalism and explaining why it has failed to provide a consistent basis for constitutionaldecision-making, the author goes on to offer an alternative approach: one that lends greater legitimacy to the Court's interpretations of the Constitution.
Political institutions are the main subject of political theory-or they ought to be. Jeremy Waldron argues for reorienting the theory of politics toward the institutions of modern democracy and the mechanisms through which democratic ideals are achieved. Too many political theorists are preoccupied with the nature of justice, liberty, and equality, at the cost of ignoring the governmental institutions needed to achieve them. By contrast, political scientists have kept institutions in view but deploy a meager set of value-conceptions in analyzing them. Waldron considers the uses and abuses of an array of institutions and traditions, from separation of powers and bicameralism to judicial review of legislation, the principle of loyal opposition, the nature of representation, accountability, and the rule of law. He provides a critical perspective on the role of courts in a constitutional democracy and offers an illuminating critique of the contrasting views of Hannah Arendt and Isaiah Berlin. Even if political theorists remain fixated on expounding the philosophical foundations of democracy, Waldron argues, a firmer grasp of the means through which democracy is realized is also needed. This is what political political theory means: theory addressing the way institutions orchestrate resolutions to disputes over social ideals.
On the night of September 6, 2011, terror called at the Amish home of the Millers. Answering a late-night knock from what appeared to be an Amish neighbor, Mrs. Miller opened the door to her five estranged adult sons, a daughter, and their spouses. It wasn't a friendly visit. Within moments, the men, wearing headlamps, had pulled their frightened father out of bed, pinned him into a chair, and-ignoring his tearful protests-sheared his hair and beard, leaving him razor-burned and dripping with blood. The women then turned on Mrs. Miller, yanking her prayer cap from her head and shredding it before cutting off her waist-long hair. About twenty minutes later, the attackers fled into the darkness, taking their parents' hair as a trophy. Four similar beard-cutting attacks followed, disfiguring nine victims and generating a tsunami of media coverage. While pundits and late-night talk shows made light of the attacks and poked fun at the Amish way of life, FBI investigators gathered evidence about troubling activities in a maverick Amish community near Bergholz, Ohio-and the volatile behavior of its leader, Bishop Samuel Mullet. Ten men and six women from the Bergholz community were arrested and found guilty a year later of 87 felony charges involving conspiracy, lying, and obstructing justice. In a precedent-setting decision, all of the defendants, including Bishop Mullet and his two ministers, were convicted of federal hate crimes. It was the first time since the 2009 passage of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act that assailants had been found guilty for religiously motivated hate crimes within the same faith community. Renegade Amish goes behind the scenes to tell the full story of the Bergholz barbers: the attacks, the investigation, the trial, and the aftermath. In a riveting narrative reminiscent of a true crime classic, scholar Donald B. Kraybill weaves a dark and troubling story in which a series of violent Amish-on-Amish attacks shattered the peace of these traditionally nonviolent people, compelling some of them to install locks on their doors and arm themselves with pepper spray. The country's foremost authority on Amish society, Kraybill spent six months assisting federal prosecutors with the case against the Bergholz defendants and served as an expert witness during the trial. Informed by trial transcripts and his interviews of ex-Bergholz Amish, relatives of Bishop Mullet, victims of the attacks, Amish leaders, and the jury foreman, Renegade Amish delves into the factors that transformed the Bergholz Amish from a typical Amish community into one embracing revenge and retaliation. Kraybill gives voice to the terror and pain experienced by the victims, along with the deep shame that accompanied their disfigurement-a factor that figured prominently in the decision to apply the federal hate crime law. Built on Kraybill's deep knowledge of Amish life and his contacts within many Amish communities, Renegade Amish highlights one of the strangest and most publicized sagas in contemporary Amish history.
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.
The rights revolution in the United States consisted of both sweeping changes in constitutional doctrines and landmark legislative reform, followed by decades of innovative implementation in every branch of the federal government - Congress, agencies, and the courts. In recent years, a growing number of political scientists have sought to integrate studies of the rights revolution into accounts of the contemporary American state. In The Rights Revolution Revisited, a distinguished group of political scientists and legal scholars explore the institutional dynamics, scope, and durability of the rights revolution. By offering an inter-branch analysis of the development of civil rights laws and policies that features the role of private enforcement, this volume enriches our understanding of the rise of the 'civil rights state' and its fate in the current era.
Enshrining the fundamental rights and freedoms of its citizens in law, and curbing the power of those who rule them, the US constitution is one of the most significant documents in the history of democracy. New to Penguin's Little Black Classics series.
Nancy Chang of the Center for Constitutional Rights examines how the USA Patriot Act endows the executive branch of the U.S. government with vast unchecked powers, erodes civil liberties and privacy, and impacts the lives of immigrants.
In New Jersey, one in five residents is over the age of 65. The Garden State's legal and healthcare systems are becoming increasingly complex, making it more difficult than ever for seniors to understand their rights and take advantage of available assistance and services. Elder Law in New Jersey provides important, practical information to New Jersey residents, especially older adults who have become entangled in an incomprehensible web of healthcare and social security bureaucracies, younger adults who are caregivers to elderly parents, and middle-class citizens who fear the debilitating physical and financial effects of chronic illness. The legal problems most often encountered by seniors can involve frustrating losses of control over nearly all aspects of their lives. Attorney Alice Dueker, who specializes in elder law, explains complex legal issues in easily understood language. She looks at: * various ways to obtain and pay for healthcare, including nursing home care * how to create a will * how to address and avoid internal family disputes, including child custody, marriage, divorce, grandparent visitation rights, and elder abuse * employment issues such as age and disability discrimination, as well as pensions * problems of consumer fraud * housing issues for both tenants and homeowners She provides contact information for agencies and programs that provide free or low cost services for seniors, and resources for locating attorneys. Elder law is state specific, so New Jersey residents will find this book especially helpful and applicable to their own lives.
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