Suchergebnisse

In his 1996 State of the Union Address, President Bill Clinton announced that the "age of big government is over." Some Republicans accused him of cynically appropriating their themes, while many Democrats thought he was betraying the principles of the New Deal and the Great Society. Mark Tushnet argues that Clinton was stating an observed fact: the emergence of a new constitutional order in which the aspiration to achieve justice directly through law has been substantially chastened. Tushnet argues that the constitutional arrangements that prevailed in the United States from the 1930s to th

Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stro.

Cover -- Half Title -- Title Page -- Copyright Page -- Table of Contents -- Acknowledgements -- Series Preface -- Introduction -- Part I Bills of Rights and Democratic Self-Governance -- 1 Jeremy Waldron (1993), 'A Right-Based Critique of Constitutional Rights' -- 2 D.J. Galligan (1983), 'Judicial Review and Democratic Principles: Two Theories' -- 3 Rebecca L. Brown (1998), 'Accountability, Liberty, and the Constitution' -- Part II Judicial Enforcement of Bills of Rights -- 4 Stephen Gardbaum (2001), 'The New Commonwealth Model of Constitutionalism' -- 5 Lorraine Eisenstat Weinrib (1990), 'Learning to Live with the Override' -- 6 Peter W. Hogg and Allison A. Bushell (1997), 'The Charter Dialogue Between Courts and Legislatures (or Perhaps The Charter of Rights lsn't Such a Bad Thing After All)' -- 7 Janet McLean (2001), 'Legislative Invalidation, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act', -- 8 Mark Tushnet (2003), 'New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries' -- Part III Legislative Enforcement of Bills of Rights -- 9 James B. Thayer (1893), 'The Origin and Scope of the American Doctrine of Constitutional Law' -- 10 Elizabeth Garrett and Adrian Vermeule (2001), 'Institutional Design of a Thayerian Congress' -- 11 Wojciech Sadurski (2002), 'Judicial Review and the Protection of Constitutional Rights' -- Name Index

"The NAACP's fight against segregated education - the first public interest litigation campaign - culminated in the 1954 Brown decision. While touching on the general social, political, and economic climate in which the NAACP acted, Mark V. Tushnet emphasizes the internal workings of the organization as revealed in its own documents. He argues that the dedication and political and legal skills of staff members such as Walter White, Charles Hamilton Houston, and Thurgood Marshall were responsible for the ultimate success of public interest law. This edition contains a new epilogue by the author that addresses general questions of litigation strategy, the contested question of whether the Brown decision mattered, and the legacy of Brown through the Burger and Rehnquist courts."--Jacket.

Here a leading scholar in constitutional law, Mark Tushnet, challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. Many people, particularly liberals, have "warm and fuzzy" feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for prote

Intro -- Contents -- Prologue: "Things That We Knew but Would Rather Forget -- 1. "The Right Man and the Right Place": From the Second Circuit to the Supreme Court -- 2. "The Steam Roller Will Have to Grind Me Under": Marshall and the Brethren -- 3. "Assumptions About How People Live": Working on the Supreme Court -- 4. "Unless Our Children Begin to Learn Together": Desegregating the Schools -- 5. "Vital Interests of a Powerless Minority": Equal Protection Theory -- 6. "Now, When a State Acts to Remedy . . . Discrimination": Affirmative Action -- 7. "Compassion in Time of Crisis": The Death Penalty -- 8. "We Are Dealing with a Man's Life": Administering the Death Penalty -- 9. "Some Clear Promise of a Better World": The Jurisprudence of Thurgood Marshall -- Epilogue: "He Did What He Could with What He Had -- Notes -- Bibliography -- Table of Cases -- A -- B -- C -- D -- E -- F -- G -- H -- I -- J -- K -- L -- M -- N -- O -- P -- Q -- R -- S -- T -- U -- V -- W -- Z -- Index -- A -- B -- C -- D -- E -- F -- G -- H -- I -- J -- K -- L -- M -- N -- O -- P -- R -- S -- T -- V -- W -- Y.

Following on Making Civil Rights Law, which covered Thurgood Marshall's career from 1936-1961, this book focuses on Marshall's career on the Supreme Court from 1961-1991, where he was first Afro-American Justice. The first book on Justice Thurgood Marshall's years on the Supreme Court based on a comprehensive review of the Supreme Court papers of Justices Marshall and William J. Brennan, this work describes Marshall's special approach to constitutional law in areas ranging from civil rights and the death penalty to abortion and poverty. It also describes the Supreme Court's operations during Marshall's tenure, the relations among the justices, and the particular roles played by Chief Justice Warren Burger, Justice Brennan, and Justice Antonin Scalia. The book locates the Supreme Court's actions from 1967 to 1991 in a broader historical and political context, explaining how Marshall's liberalism became increasingly isolated on a Court influenced by nation's drift in a more conservative direction.

Abstract
This article uses Ernst Fraenkel's concept of the "dual state" as the vehicle for examining the role of "lynch law" as a mode of governance of African Americans in the United States from 1865 to 1940 (roughly). It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel's distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of "moves" such as permissible distinctions and analogies that are treated (sociologically) as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren't mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel's prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet "lynch law" was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it.