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The Soul of the Senate
Recent legislative battles over healthcare reform, the federal budget, and other prominent issues have given rise to widespread demands for the abolition or reform of the filibuster in the US Senate. Critics argue that members' traditional rights of unlimited debate and amendment have led to paralyzing requirements for supermajorities and destructive parliamentary tactics such as "secret holds." In Defending the Filibuster, a veteran Senate aide and a former Senate Parliamentarian maintain that the filibuster is fundamental to the character of the Senate. They contend that the filibuster protects the rights of the minority in American politics, assures stability and deliberation in government, and helps to preserve constitutional principles of checks and balances and separation of powers. Richard A. Arenberg and Robert B. Dove provide an instructive historical overview of the development of Senate rules, define and describe related procedures and tactics, examine cases related to specific pieces of legislation, and consider current proposals to end the filibuster or enact other reforms. Arguing passionately in favor of retaining the filibuster, they offer a stimulating assessment of the issues surrounding current debates on this contentious issue.
Law, Technology, and Reproduction in An Uneasy Age
Defining the Family: Law, Technology, and Reproduction in an Uneasy Age provides a sweeping portrait of the family in American law from the nineteenth century to the present. The family today has come to be defined by individuality and choice. Pre-nuptial agreements, non-marital cohabitation, gay and lesbian marriages have all profoundly altered our ideas about marriage and family. In the last few years, reproductive technology and surrogacy have accelerated this process of change at a breathtaking rate. Once simple questions have taken on a dizzying complexity: Who are the real parents of a child? What are the relationships and responsibilities between a child, the woman who carried it to term, and the egg donor? Between viable sperm and the wife of a dead donor?
The courts and the law have been wildly inconsistent and indecisive when grappling with these questions. Should these cases be decided in light of laws governing contracts and property? Or it is more appropriate to act in the best interests of the child, even if that child is unborn, or even unconceived? No longer merely settling disputes among family members, the law is now seeing its own role expand, to the point where it is asked to regulate situations unprecedented in human history. Janet L. Dolgin charts the response of the law to modern reproductive technology both as it transforms our image of the family and is itself transformed by the tide of social forces.
What the History of Obscenity Tells Us about Hate Speech
“Kevin Saunders puts forward a striking thesis, namely that hate speech deserves regulation under the First Amendment because it degrades the human personality of those whom it targets. In likening hate speech to pornography and obscenity, Saunders provides a novel and arresting approach that avoids entanglement in the thought-ending clichés that have marked much previous scholarship on this subject.”
Taming Globalization Through Law Reform
Economic globalization has had a chilling effect on democracy since markets now do some of the work that governments used to do through the political process. More than two decades of deregulation have made a healthy economy appear to depend on unrestrained markets. But appearances are misleadingglobalization is also a legal and political process. The future of democracy in the twenty-first century depends on the ability of citizens to reclaim a voice in taming globalization through domestic politics and law reform.
"The book's topic could not be more important: how do we adapt contemporary democratic governance- and contemporary administrative law- to the challenge of a globalizing world?"Kal Raustiala, UCLA School of Law
Can citizens govern globalization? Aman argues that they can, and that domestic law has a crucial role to play in this process. He proposes to redefine the legal distinction between public and private to correspond to the realities of the new role of the private sector in delivering public services, and thereby to bring crucial sectors of globalization back within the scope of democratic reform.
Basing his argument on the history of the policies that led to globalization, and the current policies that sustain it, Aman advocates specific reforms meant to increase private citizens' influence on globalization. He looks at particular problem areas usually thought to be domestic in nature, such as privatization, prisons, prescription drugs, and the minimum wage, as well as constitutional structural issues such as federalism and separation of powers.
The Press and Law in the Corporate Rationalization of the Public Sphere
In Democracy, Inc., David S. Allen exposes the vested interests behind the U.S. slide toward conflating corporate values with public and democratic values. He argues that rather than being institutional protectors of democratic principles, the press and law perversely contribute to the destruction of public discourse in the United States today. _x000B_Allen utilizes historical, philosophical, sociological, and legal sources to trace America's gradual embrace of corporate values. He argues that such values, including winning, efficiency, and profitability actually limit democratic involvement by devaluing discursive principles, creating an informed yet inactive public. Through an examination of professionalization in both the press and the law, corporate free speech rights, and free speech as property, Democracy, Inc. demonstrates that today's democracy is more about trying to control and manage citizens than giving them the freedom to participate. Allen not only calls on institutions to reform the way they understand and promote citizenship but also asks citizens to adopt a new ethic of public discourse that values understanding rather than winning. _x000B__x000B_
Duke, Emory, Rice, Tulane, and Vanderbilt
After World War II, elite private universities in the South faced growing calls for desegregation. Though, unlike their peer public institutions, no federal court ordered these schools to admit black students and no troops arrived to protect access to the schools, to suggest that desegregation at these universities took place voluntarily would be misleading In Desegregating Private Higher Education in the South,Melissa Kean explores how leaders at five of the region's most prestigious private universities—Duke, Emory, Rice, Tulane, and Vanderbilt—sought to strengthen their national position and reputation while simultaneously answering the increasing pressure to end segregation. To join the upper echelon of U. S. universities, these schools required increased federal and northern philanthropic funding. Clearly, to receive this funding, schools had to eliminate segregation, and so a rift appeared within the leadership of the schools. University presidents generally favored making careful accommodations in their racial policies for the sake of academic improvement, but universities' boards of trustees—the presidents' main opponents—served as the final decision-makers on university policy. Board members--usually comprised of professional, white, male alumni--reacted strongly to threats against southern white authority and resisted determinedly any outside attempts to impose desegregation. The grassroots civil rights movement created a national crisis of conscience that led many individuals and institutions vital to the universities' survival to insist on desegregation. The schools felt enormous pressure to end discrimination as northern foundations withheld funding, accrediting bodies and professional academic associations denied membership, divinity students and professors chose to study and teach elsewhere, and alumni withheld contributions. The Brown v. Board of Education decision in 1954 gave the desegregation debate a sense of urgency and also inflamed tensions—which continued to mount into the early 1960s. These tensions and the boards' resistance to change created an atmosphere of crisis that badly eroded their cherished role as southern leaders. When faced with the choice between institutional viability and segregation, Kean explains, they gracelessly relented, refusing to the end to admit they had been pressured by outside forces. Shedding new light on a rare, unexamined facet of the civil rights movement, Desegregating Private Higher Education in the South fills a gap in the history of the academy.
Beyond One L
Young lawyers are morosely unhappy by every conceivable standard. They arrive at our law schools brimming with enthusiasm, but a decade later they are reporting staggering levels of anxiety, drug addiction, and depression. In legal circles there is talk about a “crisis of professionalism” and a “decline in civility,” but the problem goes much deeper. Through ignorance and greed, the legal profession has designed a complicated system of education, licensing, and practice that drives young lawyers into fear, alienation, and self-hatred. The author of this book---a law professor and practicing attorney---argues that young lawyers face a series of institutional absurdities built into the fabric of law school, the bar exam, and law firm practice. The current system is churning out a tidal wave of disaffected and bitter lawyers who see the legal system as a Byzantine maze, an endless artificial game totally disconnected from considerations of justice. “The Destruction of Young Lawyers” shows how these struggles can be reversed through massive structural change and is the first step toward diagnosis and treatment of the specific problems facing young lawyers.
How Hate Speech Paves the Way For Harmful Social Movements
Destructive Messages argues that hate speech is dangerous not only when it poses an immediate threat of harm. It is also dangerous when it is systematically developed over time, becoming part of a culturally acceptable dialogue which can foster the persecution of minorities.
Tsesis traces a causal link between racist and biased rhetoric and injustices like genocide and slavery. He shows that hate speech and propaganda, when left unregulated, can weave animosity into the social fabric to such a great extent that it can cultivate an environment supportive of the commission of hate crimes. Tsesis uses historical examples to illuminate the central role racist speech played in encouraging attitudes that led to human rights violations against German Jews, Native Americans, and African Americans, and also discusses the dangers posed by hate speech spread on the Internet today. He also offers an examination of the psychology of scapegoating.
Destructive Messages argues that when hate speech is systematically developed over time it poses an even greater threat than when it creates an immediate clear and present danger. Tsesis offers concrete suggestions concerning how to reform current law in order to protect the rights of all citizens.
The Case for Candor after Guantanamo
"Our current stalemate over detention serves nobody not the military or any other component of the U.S. government that has to operate overseas.... It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody." from the Introduction
Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.
Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law "eschews it except when legislatures and courts deem it necessary to prevent grave public harm." But the habeas corpus legal cases that have come out of the Guantánamo Bay detentionfacility which remains open, despite popular expectations to the contrary have addressed only a small slice of the overall issue and have not and will not produce a coherent body of policy.
U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America's current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to "devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing."
Technology and Privacy in the Information Age
Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. For each individual, these databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases—which Daniel J. Solove calls “digital dossiers”—has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.
The Digital Person sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.
The first volume in the series EX MACHINA: LAW, TECHNOLOGY, AND SOCIETY