This book discusses affirmative action or positive discrimination, defined as measures awarding privileges to certain groups that have historically suffered discrimination or have been underrepresented in specific social sectors. The book's underlying rationale is that one cannot place at the same starting point people who have been treated differently in the past because in this way one merely perpetuates a state of difference and, in turn, social gaps are exaggerated and social cohesion is endangered. Starting out with an introduction on the meaning and typology of affirmative action policies, the book goes on to emphasise the interaction of affirmative action with traditional values of liberal state, such as equality, meritocracy, democracy, justice, liberalism and socialism. It reveals the affirmative action goals from a legal and sociological point of view, examining the remedial, cultural, societal, pedagogical and economy purposes of such action. After applying an institutional narrative of the implementation of affirmative action worldwide, the book explains the jurisprudence on the issue through syntheses and antitheses of structural and material variables, such as the institutional recognition of the policies, the domains of their implementation and their beneficiaries. The book eventually makes an analytical impact assessment following the implementation of affirmative action plans and the judicial response, especially in relation to the conventional human rights doctrine, by establishing a liaison between affirmative action and social and group rights.. The book applies a multi-disciplinary and comparative methodology in order to assess the ethical standing of affirmative action policies, the public interests involved and their effectiveness towards actual equality. In the light of the above analysis, the monograph explains the arguments considering affirmative action as a theology for substantive equality and the arguments treating this policy as anathema for liberalism. A universal discussion currently at its peak.

Often cited authority on the foundations of law. Originally published: Cincinnati: Robert Clarke & Co., 1874. xiii, 401 pp. Originally written in Latin in 1523, this work contains two dialogues between a doctor of divinity and a student of English law. It popularized canonist learning on the nature and object of law, the religious and moral standards of law, the foundations of the common law and issues regarding the jurisdiction of Parliament. A very important work in the development of equity, Doctor and Student appeared in numerous editions. An authority well into the eighteenth century, it influenced several legal writers, including Blackstone.
." . . surely the most remarkable book relating to English law published in the Tudor period, and quite unlike any book to have come from the pen of an English lawyer before." --Dictionary of National Biography XVII:616.
CHRISTOPHER SAINT GERMAIN c.1460-1540] was a legal writer and controversialist who wrote on a variety of topics. His noteworthy works include A Treatise Concernynge the Dilusion Betwene the Spiritualtie and Temporaltie (1532) and Salem and Bizance (1533). Also a notable bibliophile, his library exceeded that of any other lawyer of his time.

What is the federal philosophy inspiring the structure of European law? The federal principle stands for constitutional arrangements that find 'unity in diversity'. The two most influential manifestations of the federal principle emerged under the names of 'dual' and 'cooperative' federalism in the constitutional history of the United States of America. Dual federalism is based on the idea that the federal government and the State governments are co-equals and each is legislating in a separate sphere. Cooperative federalism, on the other hand, stands for the thought that both governments legislate in the same sphere. They are hierarchically arranged and complement each other in solving a social problem. Can the European Union be understood in federal terms? The book's general part introduces three constitutional traditions of the federal idea. Following the American tradition, the European Union is defined as a Federation of States as it stands on the 'middle ground' between international and national law.
But what federal philosophy has the European Union followed? The special part of the book investigates the structure of European law. Three arguments are advanced to show the evolution of the European legal order from dual to cooperative federalism. The first looks at the decline of constitutional exclusivity on the part of the Member States and the European Union. For almost all objects of government, the Union and its States operate in a universe of shared powers. The second argument analyses the decline of legislative exclusivity. European and national legislation - increasingly - complement each other to solve a social problem. The third argument describes the 'constitutionalisation' of cooperative federalism in the form of the principle of subsidiarity and the idea of complementary competences. A final Chapter is dedicated to Europe's foreign affairs federalism. It analyses, whether the external sphere must be regarded as subject to different constitutional or federal principles. The book concludes that cooperative federalism will benefit both levels of government - the Union and the Member States - as the constitutional mechanism of uniform European standards complemented by diverse national standards best expresses the federal idea of 'unity in diversity'.

Conventional wisdom holds that robust enforcement of intellectual property (IP) right suppress competition and innovation by shielding incumbents against the entry threats posed by smaller innovators. That assumption has driven mostly successful efforts to weaken US patent protections for over a decade. This book challenges that assumption. In Innovators, Firms, and Markets, Jonathan M. Barnett confronts the reigning policy consensus by analyzing the relationship between IP rights, firm organization, and market structure. Integrating tools and concepts from IP and antitrust law, institutional economics, and political science, real-world understandings of technology markets, and empirical insights from the economic history of the US patent system, Barnett provides a novel framework for IP policy analysis. His cohesive framework explains how robust enforcement of IP rights enables entrepreneurial firms, which are rich in ideas but poor in capital, to secure outside investment and form the cooperative relationships needed to transform a breakthrough innovation into a marketable product. The history of the US patent system and firms' lobbying tendencies show that weakening patent protections removes a critical tool for entrants to challenge incumbents that enjoy difficult-to-match commercialization and financing capacities. Counterintuitively, the book demonstrates that weak IP rights are often the best entry barrier the state can provide to protect entrenched incumbents against disruptive innovators. By challenging common assumptions and offering a powerful integrated framework for understanding how innovation happens and the law's role in that process, Barnett's Innovators, Firms, and Markets provides important insights into how IP law shapes our economy.

Prisoners' rights is an area of constitutional law that is often overlooked. Combining an historical and strategic analysis, this study describes the doctrinal development of the constitutional rights of prisoners from the pre-Warren Court period through the current Rehnquist Court. Like many provisions in the Bill of Rights, the meaning of the Eighth Amendment's language on cruel and unusual punishment and the scope of prisoners' rights have been influenced by prevailing public opinion, interest group advocacy, and--most importantly--the ideological values of the nine individuals who sit on the Supreme Court. These variables are incorporated in a strategic analysis of judicial decision making in an attempt to understand the constitutional development of rights in this area.

Fliter examines dozens of cases spanning 50 years and provides a systematic analysis of strategic interaction on the Supreme Court. His results support the notion that justices do not simply vote their policy preferences; some seek to influence their colleagues and the broader legal community. In many cases there was evidence of strategic interaction in the form of voting fluidity, substantive opinion revisions, dissents from denial of certiorari, and lobbying to form a majority coalition. The analysis reaches beyond death penalty cases and includes noncapital cases arising under the Eighth Amendment, habeas corpus petitions, conditions of confinement cases, and due process claims.

Since the first edition of this popular text was published in 1984, the Charter of Rights and Freedoms has transformed the role of the courts in Canadian politics. Newly revised and updated, Law, Politics, and the Judicial Process in Canada, 4th Edition provides an introduction to the issues raised by the changing political role of Canadian judges. It includes over 40 new readings, including two all-new chapters on the Harper Conservatives and Aboriginal Law. Addressing current controversies, including the Canadian Judicial Council's investigations into Justice Robin Camp and Lori Douglas and the Trudeau Government's re-introduction of the Court Challenges Program, this book strives for competing perspectives, with many readings juxtaposed to foster debate. Taking a critical approach to the Charter of Rights and Freedoms and the growth of judicial power, editors F.L. Morton and Dave Snow provide an even-handed examination of current and ongoing issues. Law, Politics, and the Judicial Process in Canada, 4th Edition is the leading source for students interested in the Charter of Rights and Freedoms and the growth of judicial power in Canada.

Historian Ramses Delafontaine presents an engaging examination of a controversial legal practice: the historian as an expert judicial witness. This book focuses on tobacco litigation in the U.S. wherein 50 historians have witnessed in 314 court cases from 1986 to 2014. The author examines the use of historical arguments in court and investigates how a legal context influences historical narratives and discourse in forensic history. Delafontaine asserts that the courtroom is a performative and fact-making theatre. Nonetheless, he argues that the civic responsibility of the historian should not end at the threshold of the courtroom where history and truth hang in the balance. The book is divided into three parts featuring an impressive range of European and American case studies. The first part provides a theoretical framework on the issues which arise when history and law interact. The second part gives a comparative overview of European and American examples of forensic history. This part also reviews U.S. legal rules and case law on expert evidence, as well as extralegal challenges historians face as experts. The third part covers a series of tobacco-related trials. With remunerations as high as hundreds of thousands of dollars and no peer-reviewed publications or communication on the part of the historians hired by the tobacco companies the question arises whether some historians are willing to trade their reputation and that of their university for the benefit of an interested party. The book further provides 50 expert profiles of the historians active in tobacco litigation, lists detailing the manner of the expert's involvement, and West Law references to these cases. This book offers profound and thought-provoking insights on the post-war forensification of history from an interdisciplinary perspective. In this way, Delafontaine makes a stirring call for debate on the contemporary engagement of historians as expert judicial witnesses in U.S. tobacco litigation.

View the Table of Contents.
Read the Introduction.

aIt addresses a powerful topic. It is a conceptually creative piece of scholarship, forged from a sophisticated interdisciplinary viewpoint.a
-- The Law and Politics Book Review

"A rich and exceptionally clear account of the meaning-making context and constitution of citizenship."
--Christine Harrington, Institute for Law and Society, New York University

"Mark Weiner provides a rare and radical insight into the racial structures of American law. Reading this racial history through the rhetoric of case law decisions--juridical racialism--provides a dramatic sense of the anthropological scope of what law has done and potentially continues to do."
--Peter Goodrich, Cardozo School of Law

"An enthralling mixture of personages and cases that reveals much about the intimate combining of law and 'American' imperialism, including the complicities of scholarship."
--Peter Fitzpatrick, Birkbeck School of Law, University of London

"Juridical racialism is legal rhetoric infused with Anglo-Saxon racial superiority and Weiner shows how it operated from the Gilded Age to the decision in Brown v. Board of Education. Reading the news, one wonders if it is not still operating today."
--John Brigham, University of Massachusetts, Amherst

Americans Without Law shows how the racial boundaries of civic life are based on widespread perceptions about the relative capacity of minority groups for legal behavior, which Mark S. Weiner calls "juridical racialism." The book follows the history of this civic discourse by examining the legal status of four minority groups in four successive historical periods: American Indiansin the 1880s, Filipinos after the Spanish-American War, Japanese immigrants in the 1920s, and African Americans in the 1940s and 1950s.

Weiner reveals the significance of juridical racialism for each group--and, in turn, Americans as a whole--by examining the work of anthropological social scientists who developed distinctive ways of understanding racial and legal identity, and through decisions of the U.S. Supreme Court that put these ethno-legal views into practice. Combining history, anthropology, and legal analysis, the book argues that the story of juridical racialism shows how race and citizenship served as a nexus for the professionalization of the social sciences, the growth of national state power, economic modernization, and modern practices of the self.

This informative, easy-to-use reference book covers a wide range of legal issues that affect children from birth until legal adulthood. Readers will learn about issues of importance to teenagers such as the right to drive, drink, engage in sexual relations, and choose a custodial parent. The book also addresses young adults' legal responsibilities including civil and criminal liability and the special legal doctrines and procedures that protect minors when they are the subject of legal proceedings. General issues such as child custody, support, adoption, abuse, and inheritance are also discussed. Important legislation and legal cases affecting children and young adults are thoroughly covered in this timely volume. A table of cases, a directory of organizations, a guide to further reading, and an index are also included. Includes table of cases A directory of organizations and a guide to further reading round out this volume

This is a quantitative reexamination of the behavior of the Founding Fathers during the creation of the United States' Constitution. It employs cliometric analysis, formal economic analysis, and modern statistical techniques, to explain the choices the founders made during the drafting and ratification of the Constitution.

"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 overlooked."
--"Law & Life"

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.

This title, a second edition of Currie & Klaaren's The promotion of administrative Justice Act Benchbook, is a commentary on the PAJA, written to assist the judges, magistrates, lawyers and administrators who are required to interpret and implement the Act. The aim is principally to describe the impact of the Act on the body of law that it codifies and reforms or, to put it another way, to describe the difference that the PAJA makes to administrative law. The PAJA has become the legislative foundation of the general administrative law of South Africa. Though analysis of an administrative-law issue will not end with the Act, it certainly must begin with it - with attention to and interpretation of the Act's provisions. This title therefore aims at providing the Act's interpreters with guidance on this process of interpretation, rather than to cover South African administrative law comprehensively.

Written with exceptional clarity and fully updated from the first edition, the second edition of European Constitutional Law constitutes a classic textbook for students and practitioners of European law. Using a clear structural framework, the text guides readers through all of the core constitutional topics of EU law. Extracts from classic case law are complemented with extensive and critical discussion of the theoretical and practical aspects of the European Union and its law, leading students to a deep understanding of the subject. Chapters are enriched with more than fifty colour figures and tables, which clarify complex topics and illustrate relationships and processes. New suggestions for further reading direct students to significant pieces of academic literature for deeper self-study, and a companion website with full 'Lisbonised' versions of the cases cited in the text completes the learning package.

This book analyses the common law's approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law's approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of 'retroactivity' is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules. The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. 'Prospective overruling' is examined as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible. The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law's concern for certainty and liberty, and defeasible only to strong reasons. 'Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future...The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law. Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.' From the Foreword by Lord Rodger of Earlsferry

This book uses role theory to analyze the judicial decisions made by state supreme court judges. Grounded in the fields of anthropology, business management, psychology, and sociology, role theory holds that, for each position an individual occupies in society, he or she creates a role orientation, or a belief about the limits of proper behavior. Judicial role orientation is conceptualized as the stimuli that a judge feels can legitimately be allowed to influence his or her decision-making and, in the case of conflict among influences, what priorities to assign to different decisional criteria. This role orientation is generally seen as existing on a spectrum ranging from activist to restraintist. Using multi-faceted data collection and empirical testing, this book discusses the variation in judges' role orientations, the role that personal institutional structure and judges' backgrounds play in determining judicial orientations, and the degree to which judges' orientations affect their decision-making. The first study to provide cross-institutional research on state supreme court judges, this book expands and advances the literature on judicial role orientation. As such, this book will be of interest to graduate students and researchers studying political science, public policy, law, and the courts.

The European Community legislative process is still characterized by a certain lack of democracy, even after the Maastricht amendments to the European Community Treaties. It is therefore a matter of great importance that there is an adequate system of judicial review of community acts which will enable private parties to challenge illegal, invalid and unfair community administrative actions. There thus exists a system by which private parties can bring direct and indirect actions to seek redress. The direct actions are the actions for annulment and the action for a failure to act. The indirect action is the plea of illegality. In addition to this system specifically designed to assess the legality of community measures there are two other remedies not intended for this purpose but which are used to effect a consideration of the legality of a certain act: these are preliminary rulings on the validity of acts of the Institutions and actions for damages.
The book is divided into two parts. The first part deals extensively with annulment proceedings. The drafters of the EC Treaty attached severe conditions of locus standi to this remedy and it has fallen to the European Court of Justice to interpret and apply these conditions through its Case Law. Commentators have found it difficult to discern a common trend in the approach of the court to the locus standi issue. It appears clear however that the court has followed a very restrictive approach and that many actions have been dismissed as inadmissible. The author of this work re-examines the Case Law and systematizes it to highlight specific areas (particularly anti-dumping, competition and state aids cases) and to a lesser extent in the area of general management of the market where there has evolved a more lenient approach to the determination of the issue of locus standi of natural and legal persons.
The second part of the book deals with the alternative means of review (ie via an Article 177 Treaty reference) and suggests that these proceedings do not provide adequate protection of the interests of private parties in all situations where annulment proceedings cannot be brought because the applicants involved lack locus standi even though a certain degree of damage may have been inflicted to their interests.
Besides setting out the various remedies and showing how actions can be mounted successfully the book also assesses the extent to which the court may have shifted its approach to the locus standi question. It also reveals the areas where private parties may not always find an adequate or appropriate means of redress against illegal community actions.

Beginning with colonial times and moving to the present, Otten examines women's struggle for social, economic, political, and civic equality, using key Supreme Court decisions as the basis for chronicling the changing position of women in American society. Otten provides students with a knowledge base from which to address questions such as: Does the Constitution really protect women? Despite gains in status and legal protection, has the position of women in society really improved? What is the ultimate status of women as defined by U.S. law? Do the decisions of the Supreme Court reflect a consistency in the Court's thinking regarding women and their rightful place in society? When addressing issues related to women's rights, have the Justices of the Court engaged in social activism or simple judicial interpretation? Throughout, the author emphasizes that women's struggle for self-determination and equality is also that of men's.

View the Table of Contents. Read the Preface.

"An exciting and original work of historya].[A] bracing contribution to the somewhat dormant field of constitutional historya].that will be of interest to any historian of the Constitution. The book's main accomplishment is that it combines contemporary and historical arguments without slighting either, while providing important new evidence and insight into each."
"Journal of American History"

aInsightful in its approach to the Fourth Amendment, not only in terms of the law itself, but what is searched and seized, who particularly is subject to search and seizure, and what abuses led to broadening, thus capturing the full rich detail of the Fourth Amendmenta].Taslitz shows us in thorough fashion that we would be wise to learn from the past as we address the problems facing our society.a
--"Law and Politics Book Review"

"Reconstructing the Fourth Amendment is a remarkable scholarly accomplishment. It presents one of the most radical challenges to standard constitutional thinking--not just about searches and seizures but also about the interpretation of the Fourteenth Amendment as a protection of individual rights--in recent literature. Andrew Taslitz stakes out a radical and compelling position on a pressing contemporary issue--the protection of individual privacy against government invasion--and does so on impeccably researched and intellectually conservative grounds. It is a must read."
--H. Jefferson Powell, author of "A Community Built on Words: The Constitution in History and Politics"

"Taslitz's analysis provides a unique vision of the Fourth Amendment's purpose: to tame political violence from governmentalofficials, while forcing officials to treat each individual with respect and dignity. Taslitz's research on the search and seizure practices of Southern states during Reconstruction is illuminating and strengthens his thesis that respect for the individual lies at the core of the Fourth Amendment."
--Tracey Maclin, Professor of Law, Boston University School of Law

"Fourth Amendment scholarship has hitherto emphasized the amendment's background and gestation, i.e., the period before its inception in 1789. Taslitz, however, has removed a critical gap in that scholarship by illuminating the amendment's development after 1789, through the ante-bellum and Reconstruction periods, until 1868. Taslitz breaks new ground by exploring the Fourth Amendment's connections with political violence and slavery. He introduces readers to the interpretative diversity of and among scholars who debate the amendment's original and current contents."
--William Cuddihy, author of "The Fourth Amendment: Origins and Original Meaning, 602-1791"

The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.

Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that theoriginal Fourth Amendment of 1791--born in political struggle between the English and the colonists--served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.

With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police.

Originally published: Cambridge: Cambridge University Press, 1908. xxviii, 547 pp. Although Maitland never intended to publish these lectures, they have long been regarded as one of the best introductions to the English Constitution. Delivered in the winter of 1887 and spring of 1888, and edited and published in 1908 by one of Maitland's students, Herbert A.L. Fisher, they cover the period from 1066 to the end of the nineteenth century. Rather than a narrative historical format, they focus on describing the work of the constitution during five distinct moments in English history: 1307, 1509, 1625, 1702 and 1887. They provide an entry to some of the major concepts he later expounded in his seminal work written with Sir Frederick Pollock, The History of English Law.
Widely considered the father of modern legal history, FREDERIC WILLIAM MAITLAND 1850-1906] was an English jurist and historian best known for The History of English Law Before the Time of Edward I (1895), written with Sir Frederick Pollock. He was educated at Eton and Cambridge and studied at Lincoln's Inn, London. Maitland was called to the bar in1876 and practiced until 1884, when he became a reader in English law (1884) and professor (1888) at Cambridge. He founded the Selden Society in 1887. Hailed for his original outlook on history, his works had a profound influence on legal scholarship and remain important today.

Today there are more than 2,500 bilateral investment treaties (BITs) around the world. Most of these investment protection treaties offer foreign investors a direct cause of action to claim damages against host-states before international arbitral tribunals. This procedure, together with the requirement of compensation in indirect expropriations and the fair and equitable treatment standard, have transformed the way we think about state liability in international law. We live in the BIT generation, a world where BITs define the scope and conditions according to which states are economically accountable for the consequences of regulatory change and administrative action. Investment arbitration in the BIT generation carries new functions which pose unprecedented normative challenges, such as the arbitral bodies established to resolve investor/state disputes defining the relationship between property rights and the public interest. They also review state action for arbitrariness, and define the proper tests under which that review should proceed. "State Liability in Investment Treaty Arbitration" is an interdisciplinary work, aimed at academics and practitioners, which focuses on five key dimensions of BIT arbitration. First, it analyses the past practice of state responsibility for injuries to aliens, placing the BIT generation in historical perspective. Second, it develops a descriptive law-and-economics model that explains the proliferation of BITs, and why they are all worded so similarly. Third, it addresses the legitimacy deficits of this new form of dispute settlement, weighing its potential advantages and democratic shortfalls. Fourth, it gives a comparative overview of the universal tension between property rights and the public interest, and the problems and challenges associated with liability grounded in illegal and arbitrary state action. Finally, it presents a detailed legal study of the current state of BIT jurisprudence regarding indirect expropriations and the fair and equitable treatment clause.

This study analyzes the process of constitutional interpretation, that is, the methodology by which the Supreme Court goes about interpreting the Constitution, and offers a comprehensive view of constitutional law through the lens of history, political science, and jurisprudence. Shaman examines the practice of creating meaning for the Constitution, the dichotomy of legal formalism and realism, the levels of judicial scrutiny, the perception of reality, and the puzzle of legislative motive. While the book traces the historical development of constitutional law, its main focus is on modern jurisprudence, including analyses of the major themes of constitutional interpretation developed by the Warren, Burger, and Rehnquist Courts.

Shaman details the Warren Court's move to a more realistic jurisprudence and its development of a multi-level system of judicial review that has become increasingly more complex under the Burger and Rehnquist Courts. He critiques the Supreme Court's reversion in recent years to an old-fashioned formalistic jurisprudence and the growing tendency of the Court to look to the past rather than to future to interpret the Constitution. The book also includes discussion of recent major doctrinal developments such as constitutional theory underlying Supreme Court decisions on gender discrimination, discrimination on the basis of sexual preference, the right to die, abortion, and freedom of speech.