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Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every one of the Justices fits into a very small number of types regardless of ideology: the hero, the soldier, the minimalist, and the mute. Heroes are willing to invoke the Constitution to invalidate state laws, federal legislation, and prior Court decisions. They loudly embrace first principles and are prone to flair, employing dramatic language to fundamentally reshape the law. Soldiers, on the other hand, are skeptical of judicial power, and typically defer to decisions made by the political branches. Minimalists favor small steps and only incremental change. They worry that bold reversals of long-established traditions may be counterproductive, producing a backlash that only leads to another reversal. Mutes would rather say nothing at all about the big constitutional issues, and instead tend to decide cases on narrow grounds or keep controversial cases out of the Court altogether by denying standing. As Sunstein shows, many of the most important constitutional debates are in fact contests between the four Personae. Whether the issue involves slavery, gender equality, same-sex marriage, executive power, surveillance, or freedom of speech, debates have turned on choices made among the four Personae-choices that derive as much from psychology as constitutional theory. Sunstein himself defends a form of minimalism, arguing that it is the best approach in a self-governing society of free people. More broadly, he casts a genuinely novel light on longstanding disputes over the proper way to interpret the constitution, demonstrating that behind virtually every decision and beneath all of the abstract theory lurk the four Personae. By emphasizing the centrality of character types, Sunstein forces us to rethink everything we know about how the Supreme Court works.
Even today, thirty years after the legal battles to save the
endangered snail darter, the little fish that blocked completion of
a TVA dam is still invoked as an icon of leftist extremism and
governmental foolishness. In this eye-opening book, the lawyer who
with his students fought and won the Supreme Court case--known
officially as "Tennessee Valley Authority v. Hill"--tells the
hidden story behind one of the nation's most significant
environmental law battles.
Whether defined by family, lineage, caste, professional or religious association, village, or region, India's diverse groups did settle on a concept of law in classical times. How did they reach this consensus? Was it based on religious grounds or a transcendent source of knowledge? Did it depend on time and place? And what apparatus did communities develop to ensure justice was done, verdicts were fair, and the guilty were punished? Addressing these questions and more, A Dharma Reader traces the definition, epistemology, procedure, and process of Indian law from the third century B.C.E. to the middle ages. Its breadth captures the centuries-long struggle by Indian thinkers to theorize law in a multiethnic and pluralist society. The volume includes new and accessible translations of key texts, notes that explain the significance and chronology of selections, and a comprehensive introduction that summarizes the development of various disciplines in intellectual-historical terms. It reconstructs the principal disputes of a given discipline, which not only clarifies the arguments but also relays the dynamism of the fight. For those seeking a richer understanding of the political and intellectual origins of a major twenty-first-century power, along with unique insight into the legal interactions among its many groups, this book offers exceptional detail, historical precision, and expository illumination.
This book investigates the political context and intentions behind the trialling of Japanese war criminals in the wake of World War Two. After the Second World War in Asia, the victorious Allies placed around 5,700 Japanese on trial for war crimes. Ostensibly crafted to bring perpetrators to justice, the trials intersected in complex ways with the great issues of the day. They were meant to finish off the business of World War Two and to consolidate United States hegemony over Japan in the Pacific, but they lost impetus as Japan morphed into an ally of the West in the Cold War. Embattled colonial powers used the trials to bolster their authority against nationalist revolutionaries, but they found the principles of international humanitarian law were sharply at odds with the inequalities embodied in colonialism. Within nationalist movements, local enmities often overshadowed the reckoning with Japan. And hovering over the trials was the critical question: just what was justice for the Japanese in a world where all sides had committed atrocities?
What is the relation between who a person is, and what he or she has? A number of Shakespeare's plays engage with this question, elaborating a 'poetics of property' centering on questions of authority and entitlement, of inheritance and prodigality, and of the different opportunities afforded by access to land and to chattel property. Being and Having in Shakespeare considers these presentations of ownership and authority. Richard II and the Henry IV plays construe sovereignty as a form of property right, largely construing imperium, or the authority over persons in a polity, as a form of dominium, the authority of the propertyholder. Nonetheless, what property means changes considerably from Richard's reign to Henry's, as the imagined world of the plays is reconfigured to include an urban economy of chattel consumables. The Merchant of Venice, written between Richard II and Henry IV, part 1, reimagines, in comic terms, some of the same issues broached in the history plays. It focuses in particular on the problem of the daughter's inheritance and on the different property obligations among kin, friends, business associates, and spouses. In the figure of the 'vagabond king', theoretically entitled but actually dispossessed, Henry VI, part 2 and King Lear both coordinate problems of entitlement with conundrums about distributive justice, raising fundamental questions about property relations and social organization.
In a bravura performance that ranges from Aaron Burr to O. J.
Simpson, Robert A. Ferguson traces the legal meaning and cultural
implications of prominent American trials across the history of the
nation. His interdisciplinary investigation carries him from
courtroom transcripts to newspaper accounts, and on to the work of
such imaginative writers as Emerson, Thoreau, William Dean Howells,
and E. L. Doctorow. Ferguson shows how courtrooms are forced to
cope with unresolved communal anxieties and how they sometimes make
legal decisions that change the way Americans think about
themselves. Burning questions control the narrative. How do such
trials mushroom into major public dramas with fundamental ideas at
stake? Why did outcomes that we now see as unjust enjoy such strong
communal support at the time? At what point does overexposure
undermine a trial's role as a legal proceeding?
A highly engaging account of the developments-not only legal, but also socioeconomic, political, and cultural-that gave rise to Americans' distinctively lawyer-driven legal culture When Americans imagine their legal system, it is the adversarial trial-dominated by dueling larger-than-life lawyers undertaking grand public performances-that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and sources-and by recovering neglected influences (including from Europe)-the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity.
The new Hungarian Basic Law, which was ratified on 1 January 2012, provoked domestic and international controversy. Of particular concern was the constitutional text's explicit claim that it was situated within a reinvigorated Hungarian legal tradition that had allegedly developed over centuries before its violent interruption during World War II, by German invaders, and later, by Soviet occupation. To explore the context and validity of this claim, and the legal traditions which have informed the stormy centuries of Hungary's constitutional development, this book brings together a group of leading historians, political scientists and legal scholars to produce a comprehensive history of Hungarian constitutional thought. Ranging in scope from an overview of Hungarian medieval jurisprudence to an assessment of the various criticisms levelled at the new Hungarian Basis Law of 2012, contributors assess the constitutions, their impacts and their legacies, as well as the social and cultural contexts within which they were drafted. The historical analysis is accompanied by a selection of original source materials, many translated here for the first time. This is the only book in English on the subject and is essential reading for all those interested in Hungary's history, political culture and constitution.
In August 1966, two weeks after England won the World Cup, and four miles from Wembley Stadium, Harry Roberts and his associates gunned down three unarmed police detectives in front of dozens of primary school children. The nation was outraged and struggled to understand what had happened. Roberts had served in the special forces during the conflict in Malaya and claimed he was assigned to kill selected targets. He returned to the UK keen to continue such work in civilian life, but he was rejected by the two gangs that dominated the London Criminal Underworld in the 1960s, the Krays and the Richardsons. Prophetically, they considered him to be too violent. Following the Shepherd's Bush Massacre, Roberts' accomplices, John Witney and John Duddy, were quickly arrested, but Roberts went to ground, using the survival and camouflage skills that he had learned in the British Army. Harry Roberts and Foxtrot One-One covers every detail of the investigation and manhunt that followed, from arrest, trial and imprisonment to Roberts' eventual (and controversial) release. One of the most notorious crimes of the 20th century. The case that led to the police firearms training arrangements seen today. Looks at the tragic impact on the victims' families. By a former senior Metropolitan Police armed officer.
Is comparative legal history an emerging discipline or a much-needed dialogue between two academic subjects? This research handbook presents the field in a uniquely holistic way, and illustrates how comparative law and legal history are inextricably related. Cementing a solid theoretical grounding for the discipline, legal historians and comparatists place this subject at the forefront of legal science. Comprehensive in coverage, this handbook collates theory and method for comparative legal history, as well as discussing international legal sources and judicial and civil institutions. Particular attention is paid to custom and codification, contracts, civil procedure and ownership. By assessing the evolution of law across European, Asian, African and American environments from the pre-modern era to the nineteenth century, the chapters provide stimulating and enlightening cases of legal history through a comparative lens. A centrepiece for this field of scholarship, this research handbook will be an essential resource for scholars interested in comparative law, legal theory and legal history, from both legal and social science backgrounds.
Almost Citizens lays out the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898. As America became an overseas empire, a handful of remarkable Puerto Ricans debated with US legislators, presidents, judges, and others over who was a citizen and what citizenship meant. This struggle caused a fundamental shift in constitution law: away from the post-Civil War regime of citizenship, rights, and statehood and toward doctrines that accommodated racist imperial governance. Erman's gripping account shows how, in the wake of the Spanish-American War, administrators, lawmakers, and presidents together with judges deployed creativity and ambiguity to transform constitutional meaning for a quarter of a century. The result is a history in which the United States and Latin America, Reconstruction and empire, and law and bureaucracy intertwine.
This book provides the first detailed history of the Constitution's treaty supremacy rule. It describes a process of invisible constitutional change. The treaty supremacy rule was a bedrock principle of constitutional law for more than 150 years. It provided that treaties are supreme over state law and that courts have a constitutional duty to apply treaties that conflict with state laws. The rule ensured that state governments did not violate U.S. treaty obligations without authorization from the federal political branches. In 1945, the United States ratified the UN Charter, which obligates nations to promote human rights for all without distinction as to race. In 1950, a California court applied the Charters human rights provisions along with the traditional supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. Conservatives reacted by lobbying for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker's supporters achieved their goals through de facto constitutional change. Before 1945, the treaty supremacy rule was a mandatory constitutional rule that applied to all treaties. The de facto Bricker Amendment converted the rule into an optional rule that applies only to self-executing treaties. Under the modern rule, state governments are allowed to violate national treaty obligationsincluding international human rights obligationsthat are embodied in non-self-executing treaties.
This book analyses the legal literacy, knowledge and skills of people in premodern and modernizing Europe. It examines how laymen belonging both to the common people and the elite acquired legal knowledge and skills, how they used these in advocacy and legal writing and how legal literacy became an avenue for social mobility. Taking a comparative approach, contributors consider the historical contexts of England, Finland, France, Germany, Italy and Sweden. This book is divided into two main parts. The first part discusses various groups of legal literates (scriveners, court of appeal judges and advocates) and their different paths to legal literacy from the Middle Ages to the nineteenth century. The second part analyses the rise of the ownership and production of legal literature - especially legal books meant for laymen - as means for acquiring a degree of legal literacy from the eighteenth to the early twentieth century.
The Oxford Edition of Dicey provides sources with which to reassess the extraordinary authority and lasting influence of Dicey's canonical text Lectures Introductory to the Study of the Law of the Constitution. The first volume consists of Dicey's rare first edition in its original form and of the main addenda in later editions. It facilitates a historical understanding of Dicey's original text in its context and of later changes when they were made. In introducing the first volume, J.W.F. Allison reassesses The Law of the Constitution's authority and the kinds of response it has elicited in view of its original educative form and educational context. The volume also includes Dicey's unpublised inaugural lecture and his revisionist article pulbished in 1915 examining the development of administrative law in England. Volume Two, Comparative Constitutionalism, provides a complement to Dicey's The Law of the Constitution. These largely unpublished comparative constitutional lectures were written for different versions of a comparative constitutional book that Dicey began but did not finish prior to his death in 1922. The lectures were a pioneering venture into comparative constitutionalism and reveal an approach to legal education broader than Dicey is widely understood to have taken. Topics discussed include English, French, American, and Prussian constitutionalism; the separation of powers; representative government; and federalism. The volume begins with an editorial introduction examining the implications of these comparative lectures and Dicey's early foray into comparative constitutionalism for his general constitutional thought, and the kinds of response it has elicited. These two volumes collect together the main body of work from one of the most influential constitutional law theorists in the field. It is essential reading for any student of English and comparative constitutional thought
Today, every continent retains elements of the legal code distributed by the British empire. The British empire created a legal footprint along with political, economic, cultural and racial ones. One of the central problems of political theory is the insurmountable gap between ideas and their realization. Keally McBride argues that understanding the presently fraught state of the concept of the rule of law around the globe relies upon understanding how it was first introduced and then practiced through colonial administration-as well as unraveling the ideas and practices of those who instituted it. The astonishing fact of the matter is that for thirty years, between 1814 and 1844, virtually all of the laws in the British Empire were reviewed, approved or discarded by one individual: James Stephen, disparagingly known as "Mr. Mothercountry." Virtually every single act that was passed by a colony made its way to his desk, from a levy to improve sanitation, to an officer's pay, to laws around migration and immigration, and tariffs on products. Stephen, great-grandfather of Virginia Woolf, was an ardent abolitionist, and he saw his role as a legal protector of the most dispossessed. When confronted by acts that could not be overturned by reference to British law that he found objectionable, he would make arguments in the name of the "natural law" of justice and equity. He truly believed that law could be a force for good and equity at the same time that he was frustrated by the existence of laws that he saw as abhorrent. In Mr. Mothercountry, McBride draws on original archival research of the writings of Stephen and his descendants, as well as the Macaulay family, two major lineages of legal administrators in the British colonies, to explore the gap between the ideal of the rule of law and the ways in which it was practiced and enforced. McBride does this to show that there is no way of claiming that law is always a force for good or simply an ideological cover for oppression. It is both. Her ultimate intent is to illuminate the failures of liberal notions of legality in the international sphere and to trace the power disparities and historical trajectories that have accompanied this failure. This book explores the intertwining histories of colonial power and the idea of the rule of law, in both the past and the present, and it asks what the historical legacy of British Colonialism means for how different groups view international law today.
The Liber legis Scaniae: The Latin Text with Introduction, Translation and Commentaries forms the second volume of The Danish Medieval Laws and is dedicated to the Latin text based on the Danish medieval Law of Scania. Also known as the "Old laws of Scania", the Liber legis Scaniae is ascribed to Archbishop Anders Sunesen and traditionally belongs to the corpus of Danish medieval laws. It was translated from Old Danish in the thirteenth century and until now has often been considered a subsidiary text. In this book, the importance of the Liber legis Scaniae is reexamined and its role in the first redaction of the Danish medieval laws is revealed as far more central than previously thought. This is the first time the text has been translated into English, and both the original Latin and the new English translation are included together. Beginning with a detailed introduction providing key information about the text, its author and its place in Danish legal history, and including a chapter dedicated to the Latin language of the text, this book will be ideal for students and scholars of medieval Scandinavian legal history. It also concludes with an extensive Latin-to-English glossary.
This book chronicles the development of criminal law in America, from the beginning of the constitutional era (1789) through the rise of the New Deal order (1939). Elizabeth Dale discusses the changes in criminal law during that period, tracing shifts in policing, law, the courts and punishment. She also analyzes the role that popular justice - lynch mobs, vigilance committees, law-and-order societies and community shunning - played in the development of America's criminal justice system. This book explores the relation between changes in America's criminal justice system and its constitutional order.
Rule of law has vanished in America's criminal justice system. Prosecutors decide whom to punish; most accused never face a jury; policing is inconsistent; plea bargaining is rampant; and draconian sentencing fills prisons with mostly minority defendants. A leading criminal law scholar looks to history for the roots of these problems - and solutions.
Dred Scott and his landmark Supreme court case are ingrained in the national memory, but he was just one of multitudes who appealed for their freedom in courtrooms across the country. Appealing for Liberty is the first study of its kind to give voice to these African Americans, drawing from more than two thousand suits and from the testimony of more than four thousand plaintiffs from the Revolutionary Era to the Civil War. Through the petitions, evidence, and testimony introduced in these court proceedings, the lives of the enslaved come sharply and poignantly into focus, as do many other aspects of southern society. This book depicts in graphic terms, the pain, suffering, fears, and trepidations of the plaintiffs while discussing the legal system-lawyers, judges, juries, and testimony-that made judgments on their "causes," as the suits were often called. Arguments for freedom were diverse: slaves brought suits claiming they had been freed in wills and deeds, were born of free mothers, were descendants of free white women or Indian women; they charged that they were illegally imported to some states or were residents of the free states and territories. Those who testified on their behalf-usually against leaders of the communities-were generally white. So too were the lawyers who took these cases, many of them men of prominence, such as Francis Scott Key. More often than not, these men were slave owners themselves-complicating our understanding of race relations in the antebellum period. A majority of the cases examined here were not appealed, nor did they create important judicial precedent. Indeed, most of the cases ended at the county, circuit, or district court level of various southern states. Yet the narratives of both those who gained their freedom and those who failed to do so, and the issues their suits raised, shed a bold and timely light on the history of race and liberty in the "land of the free."
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