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Book by Ralph Nader Congress Project

Examines recent debates in constitutional theory in light of the work of Alexander Bickel.The role courts should play in American democracy has long been contested, fueling debates among citizens who take an active interest in politics. Alexander Bickel made a significant contribution to these debates with his seminal publication, The Least Dangerous Branch, which framed the problem of defending legitimate judicial authority. This book addresses whether or not the countermajoritarian difficulty outlined in Bickel’s work continues to have significance for constitutional theory almost a half-century later. The contributors illustrate how the countermajoritarian difficulty and Bickel’s response to it engage prominent theories: the proceduralisms of John Hart Ely and Jeremy Waldron; the republicanisms of Bruce Ackerman and Cass Sunstein; and the originalisms of Raoul Berger, Robert Bork, and Keith Whittington. In so doing, this book provides a useful introduction to recent debates in constitutional theory and also contributes to the broader discussion about the proper role of the courts.

Book by Ralph Nader Congress Project

Although constitutional law is supposed to be fixed and enduring, its central narrative in the twentieth century has been one of radical reinterpretation--Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies such radical reinterpretation? How does it work doctrinally? What, if anything, structures it or limits it? Jed Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly. He posits two different understandings of how constitutional rights would apply or not apply to particular legislation. One is that a right would be violated if certain laws were passed. The other is that a right would not be violated. He calls the former "Application Understandings" and the latter "No-Application Understandings." He finds that constitutional law has almost always adhered to all of the original Application Understandings, but where it has departed from history, as it did in the Brown decision, it has departed from No-Application Understandings. Specifically, the Fourteenth Amendment did not prohibit racial segregation, so Rubenfeld argues that the Supreme Court had no problem reinterpreting it to prohibit it. It was a No-Application Understanding.This is a powerful argument that challenges current theories of constitutional interpretation from Bork to Dworkin. It rejects simplistic originalism, but restores historicity to constitutional theorizing.

This modern study of the independence of the judiciary in England utilizes the perceptions of the Lord Chancellor's Office to provide a fresh examination of the importance of this concept in British constitutional law and politics. Working from the records of the Lord Chancellor's Office, the author discusses a number of issues" the appointment of judges and the attempt to remove them; the disciplining of judges; their role in the Courts; their executive responsibilities, and the role of English judges in the Judicial Committee of the Privy Council. This important work also examines the battles within and around the judiciary in the past thirty years, and places them in the broader context of the separation of powers, the legal system, and the politics of the period.

This modern study of the independence of the judiciary in England utilizes the perceptions of the Lord Chancellor's Office to provide a fresh examination of the importance of this concept in British constitutional law and politics. Working from the records of the Lord Chancellor's Office, the author discusses a number of issues" the appointment of judges and the attempt to remove them; the disciplining of judges; their role in the Courts; their executive responsibilities, and the role of English judges in the Judicial Committee of the Privy Council. This important work also examines the battles within and around the judiciary in the past thirty years, and places them in the broader context of the separation of powers, the legal system, and the politics of the period.

Demonstrates the ways in which the Supreme Court's use of the Fourteenth Amendment, especially since 1954, has represented a continuing revision of the Constitution under the guise of interpretation and has dangerously disregarded the intentions of the amendment's framers

This book presents a study of the evolution of a professional judiciary in medieval England through the careers of forty-nine royal justices from the last decade of Henry II until 1239. Those years were crucial for the growth of the common law, producing the two legal treatises Glanvill and Bracton. The period also represents a critical phase in the growth of a professional civil service for England. Professor Turner's study plots the shifts from unspecialized multipurpose royal servants to corps of specialists, concentrating on one sphere. By using the method known as prosopography, the author succeeds in bringing vague outlines of the early royal justices into sharper focus. Although they played a major role in the shaping of English common law, little biographical material has been available. This study, by looking at the judges collectively, succeeds in overcoming the scarcity of sources on individuals and presents a composite picture.

Demonstrates the ways in which the Supreme Court's use of the Fourteenth Amendment, especially since 1954, has represented a continuing revision of the Constitution under the guise of interpretation and has dangerously disregarded the intentions of the amendment's framers

In this unique comparative study, Legomsky explores the roles of the American and British courts in immigration cases. He persuasively argues that, in remarkably similar ways, the two sets of courts have deviated from general principles of public law when confronted with immigration cases and offers both legal and political explanations for this pattern. Intended not only for those interested specifically in immigration, this book also holds new insights for anyone concerned with public or comparative law, judicial sociology, or the interaction of law and politics.

This title examines the political role of courts in new democracies in Latin America and Africa, focusing on their ability to hold political power-holders accountable when they act outside their constitutionally defined powers. The book also issues a warning: there are problems inherent in the current global move towards strong constitutional government, where increasingly strong powers are placed in the hands of judges who themselves are not made accountable.

Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges―at the risk of intellectual stagnation―to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.

Demonstrates the ways in which the Supreme Court's use of the Fourteenth Amendment, especially since 1954, has represented a continuing revision of the Constitution under the guise of interpretation and has dangerously disregarded the intentions of the amendment's framers

The American judicial branch is out of control, dominating both the executive and legislative branches. This book reveals how the Founders restrained overactive courts, utilizing the only Constitutional tool available - impeachment. With concise clarity, the historical perspective on impeachment is described, and aptly compared with the current misconceptions on impeachable offenses with the Constitution's original intentions.

No sitting federal judge has ever written so trenchant a critique of the federal judiciary as Richard A. Posner does in this, his most confrontational book. Skewering the politicization of the Supreme Court, the mismanagement of judicial staff, the overly complex system of appeals, the threat of originalism, outdated procedures, and the backward-looking traditions of law schools and the American judicial system, Posner has written a cri de coeur and a battle cry. With the prospect that the Supreme Court will soon be remade in substantial, potentially revanchist, ways, The Federal Judiciary exposes the American legal system’s most troubling failures in order to instigate much-needed reforms.Posner presents excerpts from legal texts and arguments to expose their flaws, incorporating his own explanation and judgment to educate readers in the mechanics of judicial thinking. This rigorous intellectual work separates sound logic from artful rhetoric designed to subvert precedent and open the door to oblique interpretations of American constitutional law. In a rebuke of Justice Antonin Scalia’s legacy, Posner shows how originalists have used these rhetorical strategies to advance a self-serving political agenda. Judicial culture adheres to an antiquated traditionalism, Posner argues, that inhibits progressive responses to threats from new technologies and other unforeseen challenges to society.With practical prescriptions for overhauling judicial practices and precedents, The Federal Judiciary offers an unequaled resource for understanding the institution designed by the founders to check congressional and presidential power and resist its abuse.

This title examines the political role of courts in new democracies in Latin America and Africa, focusing on their ability to hold political power-holders accountable when they act outside their constitutionally defined powers. The book also issues a warning: there are problems inherent in the current global move towards strong constitutional government, where increasingly strong powers are placed in the hands of judges who themselves are not made accountable.

The second edition of HP Lee's The Australian Judiciary provides a timely update to this seminal text. The only definitive survey of the entire Australian judiciary, this text describes and evaluates the work, techniques, problems and the future of the different tiers of courts and judges. It discusses the role of the judiciary as the third sector of government, and analyses and comments on judicial conduct, judicial independence and impartiality, the work of judges beyond the courts, the accountability of judges, and the dangers to judicial institutions. It is an excellent reference work which will appeal to legal scholars and practitioners throughout Australia and internationally.

Book by Ritz, Wilfred J., Holt, Wythe, Larue, H. H.

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Judicial activism is condemned by both right and left, for good reason―lawless courts are a threat to republican government. But challenging conventional wisdom, constitutional litigator Clint Bolick argues in David's Hammer: The Case for an Activist Judiciary that far worse is a judiciary that allows the other branches of government to run roughshod over precious liberties. For better or worse, only a vigorous judiciary can enforce the limits on executive and legislative action, protect constitution-al rights, and tame unelected bureaucrats. David's Hammer reclaims for the judiciary its intended role as the ultimate safeguard of a free society.