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The Role of Politics in Judging
According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.
Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.
Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.
Law as Public Spectacle
Witty and engagingly written, The Big Trial sheds important light on the social functions of 'headline trials' in American history, both before and during the age of mass media. Professor Friedman compellingly shows how big trials educate the public, impart moral messages, and above all, entertain us.
The Late 20th-Century Reformation of Contract Law
During its classical period, American contract law had three prominent characteristics: nearly unlimited freedom to choose the contents of a contract, a clear separation from the law of tort (the law of civil wrongs), and the power to make contracts without regard to the other party's ability to understand them. Combining incisive historical analysis with a keen sense of judicial politics, W. David Slawson shows how judges brought the classical period to an end about 1960 with a period of reform that continues to this day.
American contract law no longer possesses any of the prominent characteristics of its classical period. For instance, courts now refuse to enforce standard contracts according to their terms; they implement the consumer's reasonable expectations instead. Businesses can no longer count on making the contracts they want: laws for certain industries or for businesses generally set many business obligations regardless of what the contracts say. A person who knowingly breaches a contract and then tries to avoid liability is subject to heavy penalties.
As Slawson demonstrates, judges accomplished all these reforms, although with some help from scholars. Legislation contributed very little despite its presence in massive amounts and despite the efforts of modern institutions of law reform such as the Conference of Commissioners on Uniform State Laws. Slawson argues persuasively that this comparison demonstrates the superiority of judge-made law to legislation for reforming private law of any kind.
A Guide to Shaping Shared Solutions, Revised and Expanded Edition
Expanded by two-thirds from the 2004 edition, the new edition features two new role plays, a new chapter on how to write chart notes, and a discussion of new understandings of the role of the clinical ethics consultant. **** Bioethics Mediation offers stories about patients, families, and health care providers enmeshed in conflict as they wrestle with decisions about life and death. It provides guidance for those charged with supporting the patient’s traditional and religious commitments and personal wishes. Today’s medical system, without intervention, privileges those within shared cultures of communication and disadvantages those lacking power and position, such as immigrants, the poor, and nonprofessionals. This book gives clinical ethics consultants, palliative care providers, and physicians, nurses, and other medical staff the tools they need to understand and manage conflict while respecting the values of patients and family members. Conflicts come in different guises, and the key to successful resolution is early identification and intervention. Every bioethics mediator needs to be prepared with skills to listen, “level the playing field,” identify individual interests, explore options, and help craft a “principled resolution”—a consensus that identifies a plan aligned with accepted ethical principles, legal stipulations, and moral rules and that charts a clear course of future intervention. The organization of the book makes it ideal for teaching or as a handbook for the practitioner. It includes actual cases, modified to protect the privacy of patients, providers, and institutions; detailed case analyses; tools for step-by-step mediation; techniques for the mediator; sample chart notes; and a set of actual role plays with expert mediator and bioethics commentaries. The role plays include: • discharge planning for a dying patient • an at-risk pregnancy • HIV and postsurgical complications in the ICU • treatment for a dying adolescent • dialysis and multiple systems failure
Learning Socratic Lessons of Disillusion and Renewal
Thomas Eisele explores the premise that the Socratic method of inquiry need not teach only negative lessons (showing us what we do not know, but not what we do know). Instead, Eisele contends, the Socratic method is cyclical: we start negatively by recognizing our illusions, but end positively through a process of recollection performed in response to our disillusionment, which ultimately leads to renewal. Thus, a positive lesson about our resources as philosophical investigators, as students and teachers, becomes available to participants in Socrates’ robust conversational inquiry. Bitter Knowledge includes Eisele’s detailed readings of Socrates’ teaching techniques in three fundamental Platonic dialogues, Protagoras, Meno, and Theaetetus, as well as his engagement with contemporary authorities such as Gregory Vlastos, Martha Nussbaum, and Stanley Cavell. Written in a highly engaging and accessible style, this book will appeal to students and scholars in philosophy, classics, law, rhetoric, and education.
African Americans, the Labor Movement, and the Decline of the Democratic Party
In the 1930s, fewer than one in one hundred U.S. labor union members were African American. By 1980, the figure was more than one in five. Black and Blue explores the politics and history that led to this dramatic integration of organized labor. In the process, the book tells a broader story about how the Democratic Party unintentionally sowed the seeds of labor's decline.
The labor and civil rights movements are the cornerstones of the Democratic Party, but for much of the twentieth century these movements worked independently of one another. Paul Frymer argues that as Democrats passed separate legislation to promote labor rights and racial equality they split the issues of class and race into two sets of institutions, neither of which had enough authority to integrate the labor movement.
From this division, the courts became the leading enforcers of workplace civil rights, threatening unions with bankruptcy if they resisted integration. The courts' previously unappreciated power, however, was also a problem: in diversifying unions, judges and lawyers enfeebled them financially, thus democratizing through destruction. Sharply delineating the double-edged sword of state and legal power, Black and Blue chronicles an achievement that was as problematic as it was remarkable, and that demonstrates the deficiencies of race- and class-based understandings of labor, equality, and power in America.
In 1971, Paul Harris pioneered the modern version of the black rage defense when he successfully defended a young black man charged with armed bank robbery. Dubbed one of the most novel criminal defenses in American history by Vanity Fair, the black rage defense is enormously controversial, frequently dismissed as irresponsible, nothing less than a harbinger of anarchy. Consider the firestorm of protest that resulted when the defense for Colin Ferguson, the gunman who murdered numerous passengers on a New York commuter train, claimed it was considering a black rage defense.
In this thought-provoking book, Harris traces the origins of the black rage defense back through American history, recreating numerous dramatic trials along the way. For example, he recounts in vivid detail how Clarence Darrow, defense attorney in the famous Scopes Monkey trial, first introduced the notion of an environmental hardship defense in 1925 while defending a black family who shot into a drunken white mob that had encircled their home.
Emphasizing that the black rage defense must be enlisted responsibly and selectively, Harris skillfully distinguishes between applying an environmental defense and simply blaming society, in the abstract, for individual crimes. If Ferguson had invoked such a defense, in Harris's words, it would have sent a superficial, wrong-headed, blame-everything-on-racism message. Careful not to succumb to easy generalizations, Harris also addresses the possibilities of a white rage defense and the more recent phenomenon of cultural defenses. He illustrates how a person's environment can, and does, affect his or her life and actions, how even the most rational person can become criminally deranged, when bludgeoned into hopelessness by exploitation, racism, and relentless poverty.
The Puzzle of Judicial Policymaking and Scientific Evidence
Combining political analysis, scientific reasoning, and an in-depth study of specific state supreme court cases, Black Robes, White Coats is an interdisciplinary examination of the tradition of “gatekeeping,” the practice of deciding the admissibility of novel scientific evidence. Rebecca Harris systematically examines judicial policymaking in three areas —forensic DNA, polygraphs, and psychological syndrome evidence.
Antebellum American Fiction and the Phenomenology of Possession
What does it mean to own something? How does a thing become mine? Liberal philosophy since John Locke has championed the salutary effects of private property but has avoided the more difficult questions of property’s ontology. Chad Luck argues that antebellum American literature is obsessed with precisely these questions._x000B__x000B_Reading slave narratives, gothic romances, city-mystery novels, and a range of other property narratives, Luck unearths a wide-ranging literary effort to understand the nature of ownership, the phenomenology of possession. In these antebellum texts, ownership is not an abstract legal form but a lived relation, a dynamic of embodiment emerging within specific cultural spaces—a disputed frontier, a city agitated by class conflict._x000B__x000B_Luck challenges accounts that map property practice along a trajectory of abstraction and “virtualization.” The book also reorients recent Americanist work in emotion and affect by detailing a broader phenomenology of ownership, one extending beyond emotion to such sensory experiences as touch, taste, and vision. This productive blend of phenomenology and history uncovers deep-seated anxieties—and enthusiasms—about property across antebellum culture
Constitutional Law in Weimar Germany and the French Fifth Republic
After the collapse of communism, some thirty countries scrambled to craft democratic constitutions. Surprisingly, the constitutional model they most often chose was neither the pure parliamentary model found in most of Western Europe at the time, nor the presidential model of the Americas. Rather, it was semi-presidentialism--a rare model known more generally as the "French type." This constitutional model melded elements of pure presidentialism with those of pure parliamentarism. Specifically, semi-presidentialism combined a popularly elected head of state with a head of government responsible to a legislature.
Borrowing Constitutional Designs questions the hasty adoption of semi-presidentialism by new democracies. Drawing on rich case studies of two of the most important countries for European politics in the twentieth century--Weimar Germany and the French Fifth Republic--Cindy Skach offers the first theoretically focused, and historically grounded, analysis of semi-presidentialism and democracy. She demonstrates that constitutional choice matters, because under certain conditions, semi-presidentialism structures incentives that make democratic consolidation difficult or that actually contribute to democratic collapse. She offers a new theory of constitutional design, integrating insights from law and the social sciences. In doing so, Skach challenges both democratic theory and democratic practice. This book will be welcomed not only by scholars and practitioners of constitutional law but also by those in fields such as comparative politics, European politics and history, and international and public affairs.