This book is a topical study of populist constitutionalism and illiberal democracies,exploring their roots in constitutional imagination as well as their normativeentrenchment and performance in political reality. It provides insightful analysis ofrepublican constitutionalism, focusing on the role of people in radical democracyand revolutionary constitutional reform. Furthermore, the outlook, adequacyand performance of constitutional principles in times of democratic ruptures areassessed. The contributors examine the rise of populist constitutionalism and themain trends that have led to the current, ongoing crises in liberal democracy. Thebook includes original analyses of populist constitutionalism from the viewpointof emotions and constitutional imagination, as well as a special chapter devotedto the challenges posed to constitutional democracy by COVID-19. Combiningtheoretical contributions, comparative typologies and important case studies, thespread of populism and illiberal democracy in Europe is critically explored.Populist Constitutionalism and Illiberal Democracies is a timely contribution to thelively discussion surrounding constitutional law, comparative constitutional law,comparative constitutionalism and political science regarding the rise and spreadof illiberal democracies, authoritarian political regimes and revolutionary, radicaldemocratic and populist constitutionalism.

For some, he was "America's leading smut king," hauled into court repeatedly over thirty years for peddling obscene publications through the mail. But when Samuel Roth appealed a 1956 conviction, he forced the Supreme Court to finally come to grips with a problem that had plagued both American society and constitutional law for longer than he had been in business. For while the facts of "Roth v. United States" were unexceptional, its constitutional issues would define the relationship of obscenity to the First Amendment.

The Supreme Court's 6-3 decision in "Roth" for the first time tried to definitively rule on the issue of obscenity in American life and law--and failed. In this first book-length examination of the case, Whitney Strub lays out the history of obscenity's meaning as a legal concept, highlights the influence of antivice crusaders like Anthony Comstock and John Sumner, and chronicles the shadowy career that led Roth to spend nearly a decade of his life imprisoned for the allegedly obscene materials that he sent through the mails. Strub then unwraps the events that produced "Roth v. United States," placing the trial in the context of its times--the Kinsey Reports, the Kefauver hearings, free speech debates--by using Roth's own private papers along with the records of the various prosecutions and the memos of the justices.

The significance of "Roth," as Strub reveals, lay in the two faces of Justice William Brennan's majority opinion--which on the one hand reflected the liberalizing attitude toward sexual matters in mid-century America, but on the other kept "obscene" expressions beyond First Amendment protection. Because that ruling points up the contradictions of a society where the prurient and repressive commingle uncomfortably, Strub shows how Roth says much more about American sexual values than Brennan's written words necessarily acknowledged.

In our era of internet pornography and "Fifty Shades of Grey," it may be difficult to imagine a time when obscenity was a matter for the courts. As Strub tracks the legacy of "Roth" and obscenity law through the ongoing policing of acceptable sexuality into the twenty-first century, his riveting narrative brings those times to life and helps readers navigate the fine line between what is socially acceptable and what is criminally obscene.

An introductory survey of the government's role in America's continuing drive for equality. Today's lingering inequalities, particularly the "American dilemma" of racism, runs throughout U.S. history. Equal Protection provides readers with a historical overview of the controversies over the issue of equality, an understanding of how government-and, particularly, the courts and Congress-has reacted to these controversies, and the role these issues have played in shaping U.S. society. This volume follows the push for equal treatment regardless of age, gender, disabilities, economic status, or sexual orientation. It focuses on legislation such as the Americans with Disabilities Act, and political initiatives and movements such as The Great Society, the ERA, and the War on Poverty. Here are American's interpretations of equal rights, then and now. Includes a section of A-Z entries covering people, laws, events, judicial decisions, statutes, and concepts related to equal protection in the United States Primary source documents include court decisions, executive orders, and legislation that shaped the status of equal protection in our society today

In this set of essays,public lawyers, property lawyers and legal philosophers examine the public dimensions of private property. At a time when governments across the globe are privatising formerly public property, the public forum is being replaced by the privately owned shopping mall, and an increasing range of interests are being described as 'property', an examination of the powers which attach to ownership becomes all the more pressing. The contributors consider whether property is a human right, its role in making responsible citizens, its relationship to freedom of speech and other values, the proper scope of constitutional protections of private property, impediments to the redistribution of property, and attempts to redress historical wrongs by property settlements to indigenous people. Taking a richly comparative perspective, examples have been drawn from jurisdictions as diverse as the United Kingdom, South Africa, Germany, the United States, and New Zealand. Contributors: Janet McLean (ed), Kevin Gray, Susan Francis Gray, Geoffrey Samuel, J W Harris, Gregory Alexander, Andre van der Walt, Tom Allen, Jeremy Waldron, Maurice Goldsmith, Alex Frame, John Dawson, Michael Robertson.

Constitutional Torts and the War on Terror examines the judicial response to human rights claims arising from the Bush Administration's war on terror. Despite widespread agreement that the Administration's program of extraordinary rendition, prolonged detention, and "enhanced" interrogation was torture by another name, not a single federal appellate court has confirmed an award of damages to the program's victims. The silence of the federal courts leaves victims without redress and the constitutional limits on government action undefined. Many of the suits seeking redress have been based on the landmark 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. This book traces the history of common law accountability, the rise of Bivens claims, and the post-Bivens history of constitutional tort litigation. After evaluating the failure of Bivens litigation arising from the war on terror, the book considers and rejects the arguments that have been put forward to explain and justify judicial silence. The book provides the Supreme Court with the tools needed to rethink its Bivens jurisprudence. Rather than treating the overseas national security context as disabling, modern federal courts should take a page from the nineteenth century, presume the viability of tort litigation, and proceed to the merits. Only by doing so can the federal courts ensure redress for victims and prevent future Administrations from using torture as an instrument of official policy.

On July 21, 1990, Associate Justice William J. Brennan, Jr., announced his resignation from the nation's highest court. The judicial career of the man who Wat Hopkins considers the United States Supreme Court's premier protector of expression came to an end. Hopkins examines the body of Justice Brennan's free expression jurisprudence and shows how Justice Brennan's theory of free expression was built on the metaphor of a marketplace of ideas.

Hopkins' analysis is based primarily on an examination of the significant free expression cases during Brennan's thirty-four year term. He concludes that Brennan developed a philosophically sound First Amendment theory that was accepted by the Court, but is not being applied today with the force necessary to make it truly effective. This detailed examination of Justice Brennan's jurisprudence is a noteworthy addition to legal history and scholarship.

This study proposes a multilateralist method of choice of law in order to alleviate the great disarray that currently exists in American choice law. In the early 20th century, there was a fairly-uniform multilateralist method of choice law. In the 1920s and 30s, however, scholars adn courts began to reject this method. Viewed as too mechanical the method sometimes resulted in the choice of law of a state with only a tenuous connection to the controversy. Currently, state courts use four different approached to choice law with numerous material variations. This study rejects these approaches on normative, constitutional, and practical grounds. Instead, it advocates that courts adopt a multilateralist approach to choice of law that is forum- and content-neutral and that respects the rights of both individuals and states. The study also argues that such an approach should satisfy a constitutional standard that requires a court not choose one state's law when another state has a significantly closer connection to controversy.

The proposed method consists of two parts. The first part determines the states that have created legal relations applying to the dispute. When more than one state has created a legal realtions applying to the dispute. When more than one state has created a legal relation that applies to the controversy, the second part adopts the law of the state that had the closest connection. The study then applies the suggested method to numerous choice of law problems.

A critical analysis of the connections that the United States Supreme Court has made between campaign finance regulations and voters' behavior. The sanctity of political speech is a key element of the United States Constitution and a cornerstone of the American republic. When the Supreme Court linked political speech to campaign finance in its landmark Buckley v. Valeo (1976) decision, the modern era of campaign finance regulation was born. The decision stated that in order to pass constitutional muster, any laws limiting money in politics must be narrowly tailored and serve a compelling state interest. The lone state interest the Court was willing to entertain was the mitigation of corruption. In order to reach this conclusion, the Court advanced a sophisticated behavioral model that made assumptions about how laws affect voters' opinions and behavior. These assumptions have received surprisingly little attention until now. In The Appearance of Corruption, Daron Shaw, Brian Roberts, and Mijeong Baek analyze the connections that the Court made between campaign finance regulations and voters' behavior. The court argued that an increase in perceived corruption would lower engagement and turnout. Drawing from original survey data and experiments, they confront the question of what happens when the Supreme Court is wrong-and when the foundation of over 40 years of jurisprudence is simply not true. Even with the heightened awareness of campaign finance issues that emerged in the wake of the 2010 Citizens United decision, there is little empirical support for the Court's reasoning that turnout would decline. A rigorous statistical analysis, this is the first work to simultaneously name and test each and every one of the Court's assumptions in the pre- and post-Citizen's United eras. It will also fundamentally reshape how we think about campaign finance regulation's effects on voter behavior.

This book examines the structures of power and jurisdiction that operated in Tudor England. It explains what the institutions of central government were designed to do, and how they related to each other. It discusses how order and obedience were supposed to be preserved in the countryside, and it shows how the offices designed for that purpose worked in practice. In doing so, Professor Loades highlights the complex links between the formal and informal systems of peace-keeping that functioned throughout the country and examines the critical relationship between Church and State, providing readers with an important context for the social and political developments of the age.

The book shows the extent to which changes to the monarch's status affected his real power both within the Church and within his kingdom as a whole. It explores the tensions surrounding his position: the king administered the law, but he did not make it; he could claim revenue, but it had to be granted to him; he was head of the government and the Lords Annointed, but limited by innumerable customs and obligations. In unravelling the mysteries of this ancient and cumbersome system of government," Tudor Government" offers a valuable introduction to this complex yet pivotal aspect of early modern British history.

Constitutional Rights after Globalization juxtaposes the globalization of the economy and the worldwide spread of constitutional charters of rights. The shift of political authority to powerful economic actors entailed by neo-liberal globalization challenges the traditional state-centred focus of constitutional law. Contemporary debate has responded to this challenge in normative terms, whether by reinterpreting rights or redirecting their ends, e.g. to reach private actors. However, globalization undermines the liberal legalist epistemology on which these approaches rest, by positing the existence of multiple sites of legal production, (e.g. multinational corporations) beyond the state. This dynamic, between globalization and legal pluralism on one side, and rights constitutionalism on the other, provides the context for addressing the question of rights constitutionalism's counterhegemonic potential. This shows first that the interpretive and instrumental assumptions underlying constitutional adjudication are empirically suspect: constitutional law tends more to disorder than coherence, and frequently is an ineffective tool for social change. Instead, legal pluralism contends that constitutionalism's importance lies in symbolic terms as a legitimating discourse. The competing liberal and 'new' politics of definition (the latter highlighting how neoliberal values and institutions constrain political action) are contrasted to show how each advances different agenda. A comparative survey of constitutionalism's engagement with private power shows that conceiving of constitutions in the predominant liberal, legalist mode has broadly favoured hegemonic interests. It is concluded that counterhegemonic forms of constitutional discourse cannot be effected within, but only by unthinking, the dominant liberal legalist paradigm, in a manner that takes seriously all exercises of political power.

This is a search of a model for a humane law - where the cruelty ban is still in force. This book however is not intended as an utopian enterprise; the humane law which is looked for is not for the future, nor is it meant as a reform project, or as a programme for new institutions to come. Here the contention is that positive law is better understood, if it is not too easily equated with power, force, or command. Law - it is shown - is more a matter of discourse and deliberation, than of sheer decision or of power relations. Constitutionalism, legal argumentation, legal ethics - three fundamental moments of our daily experience with the law - are there to witness that this view may be right. Now a constitutional view of the law and its practice and the connected discoursive approach to legal reasoning can offer interesting solutions also to legal ethics.

Shedding new light on the foundations of European competition law, this volume is a legal and historical study of the emerging law and its evolution through the 1980s. It retraces the development and critical junctures of competition law not only at the level of the European Economic Community but also at the level of major Member States of the EEC. Intensely researched and rich with insights, the chapters in this volume reflect a close collaboration among an expert group of lawyers and historians and capitalize on previously unavailable source materials. The book examines several key themes including: the influence of national and international competition law on the development of EEC competition law; the drafting of the regulations that lead to the development of modern EU competition law; the role of the European Court of Justice in establishing the protection of competition as a central pillar of the Common Market; the internal dynamics, ideologies and tensions within the Competition Directorate General (DG IV) of the European Commission; and the role of industrial policy in European integration. Combining legal analysis with a meticulous excavation of historical evidence to reveal the forces driving key actors and the interactions among them, this volume rediscovers a past largely forgotten but essential to understanding the genesis of competition law in Europe, its role in Europe's construction, its hybrid institutional traits, and its often unique substance.

Church-State Constitutional Issues explores the often-debated and always topical issue of the relationship between church and state as outlined in the First Amendment. Donald L. Drakeman takes an interdisciplinary approach to examine the meaning of the establishment clause, demonstrating how the studies of law, religion, history, and political science provide insight into this relationship, which, since the nation's inception, has been difficult to define. The study first chronicles the Supreme Court's decision regarding the interpretation of the establishment clause from the early 19th century to the present. This legal history is subsequently viewed from a cultural perspective as Drakeman traces both the background of the First Amendment and how the relationship of church and state has developed on its journey through the court system. The volume moves towards further understanding of this complex issue as it concludes with a new interpretation of the establishment clause derived from previous information as well as further legal and political interpretive material.

Recent controversies surrounding the war on terror and American intervention in Iraq and Afghanistan have brought rule of law rhetoric to a fevered pitch. While President Obama has repeatedly emphasized his Administration's commitment to transparency and the rule of law, nowhere has this resolve been so quickly and severely tested than with the issue of the possible prosecution of Bush Administration officials. While some worry that without legal consequences there will be no effective deterrence for the repetition of future transgressions of justice committed at the highest levels of government, others echo Obama's seemingly reluctant stance on launching an investigation into allegations of criminal wrongdoing by former President Bush, Vice President Cheney, Secretary Rumsfeld, and members of the Office of Legal Counsel. Indeed, even some of the Bush Administration's harshest critics suggest that we should avoid such confrontations, that the price of political division is too high. Measured or partisan, scholarly or journalistic, clearly the debate about accountability for the alleged crimes of the Bush Administration will continue for some time.

Using this debate as its jumping off point, When Governments Break the Law takes an interdisciplinary approach to the legal challenges posed by the criminal wrongdoing of governments. But this book is not an indictment of the Bush Administration; rather, the contributors take distinct positions for and against the proposition, offering revealing reasons and illuminating alternatives. The contributors do not ask the substantive question of whether any Bush Administration officials, in fact, violated the law, but rather the procedural, legal, political, and cultural questions of what it would mean either to pursue criminal prosecutions or to refuse to do so. By presuming that officials could be prosecuted, these essays address whether they "should."

When Governments Break the Law provides a valuable and timely commentary on what is likely to be an ongoing process of understanding the relationship between politics and the rule of law in times of crisis.

Contributors: Claire Finkelstein, Lisa Hajjar, Daniel Herwitz, Stephen Holmes, Paul Horwitz, Nasser Hussain, Austin Sarat, and Stephen I. Vladeck.

All nation states, whether ancient or newly created, must examine their constitutional fundamentals to keep their constitutions relevant and dynamic. Constitutional change has greater legitimacy when the questions are debated before the people and accepted by them. Who are the peoples in this state? What role should they have in relation to the government? What rights should they have? Who should be Head of State? What is our constitutional relationship with other nation states? What is the influence of international law on our domestic system? What process should constitutional change follow? In this volume, scholars, practitioners, politicians, public officials, and young people explore these questions and others in relation to the New Zealand constitution and provide some thought-provoking answers. This book is recommended for anyone seeking insight into how a former British colony with bicultural foundations is making the transition to a multicultural society in an increasingly complex and globalised world.

Understanding the impact of constitutional rights in the real world depends on understanding the law of constitutional remedies for their violation. Integrating the history, doctrine, and policy of constitutional remedy, Wells and Eaton explain how people go about trying to obtain redress for violations of their constitutional rights. Diverse issues arise when persons seek to bring a lawsuit against governments, officials, or private individuals for violation of their constitutional rights. Among them are whether the injury ought to be accorded constitutional status at all, or instead should be treated as a routine wrong, no different in principle from a traffic accident. If the case warrants constitutional status, the next issue is whether or not suit may be brought against the officer who committed the wrong or his government employer, and so on. On each of these and other issues the authors guide the reader through the complex body of doctrine, the lively case law debates, and the scholarly literature over the appropriate mix of policies and the means by which to achieve them.

Abortion is a quasi-eternal problem of humanity. For decades it has been - and continues to be - a highly debated political and legal issue in the Western world on both sides of the Atlantic. The contending political camps are often defined as 'pro-life' or 'pro-choice'. From a more legal perspective, the opposing positions may be described by the terms 'indication model' - where terminations are permitted in certain circumstances - and 'time limitation model' - where termination within a certain period of pregnancy is permitted on demand. Based upon a worldwide survey on abortion law and practice in a total of 64 countries carried out by the Max-Planck Institute for Foreign and International Criminal Law in Freiburg (Germany), the authors developed a 'third way'. This 'third way', which may be described as a 'discourse model', reflects the conviction that the decision to terminate must, in the final analysis, be taken by the pregnant woman herself subject to her own responsibility and that the legal system must treat her decision with respect. Along with a summary of social conditions and historical developments and a detailed comparison of legal regulations, supplemented by statistics on the termination of pregnancy, the authors arrive at their concluding reflections. Important findings, insights and trends are summarized and starting points and guidelines for reforms are pointed out. The book ends with a proposed regulation intended to provide those interested in an optimal regulation of the issue with food for thought. Prof. Dr. Dr. h.c. mult., M.C.J. (New York) Albin Eser is presently a Judge at the International Criminal Tribunal for the former Yugoslavia and Director em. of the Max-Planck-Institute for Foreign and International Criminal Law, Freiburg, Germany. Dr. jur. Hans-Georg Koch is senior researcher, Head of the medical law department of the Max-Planck-Institute for Foreign and International Criminal Law, Freiburg, Germany.

The debate on law, governance and constitutionalism beyond the state is confronted with new challenges. In the EU, confidence in democratic transnational governance has been shaken by the authoritarian and unsocial practices of crisis management. The ambition of this book, which builds upon many years of close co-operation between its contributors, is to promote a viable interdisciplinary alternative to these developments. "Conflicts-law constitutionalism" is a concept of transnational governance which derives democratic legitimacy from the supranational control of the external impact of national decision-making, on the one hand, and the co-operative responses to problem interdependencies on the other. The first section of the book contrasts Europe's new modes of economic governance and crisis management with the conditionality of international investments, and reflects upon the communalities and differences between emergency Europe and global exceptionalism. Subsequent sections substantiate the problematique of executive and technocratic rule, explore conflict constellations of prime importance in the fields of environmental and labour law, and discuss the impact and limits of liberalisation strategies. Throughout the book, European and transnational developments are compared and evaluated.