No Litmus Test (inbunden)
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No Litmus Test (inbunden)

No Litmus Test

Law versus Politics in the Twenty-First Century

Inbunden Engelska, 2006-03-01
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The courts and, indeed, the law itself are under assault from both right and left. Conservatives denounce what they see as liberal judicial activism in decisions involving abortion, gay rights, and the separation of church and state. They seek judges who will "apply" rather than "make" the law. Meanwhile, liberals decry the apparent hypocrisy of a Supreme Court that invokes states' rights to invalidate civil rights laws while overriding states' rights in order to put a Republican in the White House. Backed by academic critics who have been arguing against the possibility of objectivity for roughly a century, many critics on the left have essentially given up: Law, they contend, is simply politics in disguise. By analyzing the most pressing controversies of our day, Columbia University Law Professor Michael Dorf defends the possibility of principled legal decision making against the attacks of both the right and the left. From Bush v. Gore to the war in Iraq, No Litmus Test demonstrates that even when the law provides no clear-cut right answers, it offers tools for distinguishing good arguments from bad ones.
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Written to be accessible to the intelligent layman while broadening even the seasoned expert's understanding, Michael Dorf's colorful, creative and invariably clear analyses of the most vexing constitutional controversies of our time add up to a compelling case for an approach to law and to judging that rejects the extremes of both right and left - and emerges with a position more reasonable and reasoned than either and both more interesting, and more surprising, than a simple average of the two. -- Laurence H. Tribe, Harvard University Professor Dorf strives for fairness throughout, arguing against fetishizing the law at the cost of losing valuable nonlegal perspectives. * Harvard Law Review, March 2007 * A distinguished law professor shows that law is-and must be-something more than politics by other means. Using contemporary examples, many of which the reader will find familiar, the author teases out a remarkably coherent theory of principled judging. This splendid effort takes the reader beyond hollow labels such as "judicial activist" and "strict constructionist" and gives important insights into the kind of thinking that we should look for in a federal judge or justice -- Alex Kozinski, Judge, U.S. Court of Appeals, Ninth Circuit

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Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University School of Law. He is the editor of Constitutional Law Stories (2004) and coauthor, with Laurence H. Tribe, of On Reading the Constitution (1991). He clerked for U.S. Supreme Court Justice Anthony M. Kennedy (1991-1992) and Judge Stephen Reinhardt of U.S. Court of Appeals for the Ninth Circuit (1990-1991).


Chapter 1 Acknowledgements Chapter 2 About the Author Chapter 3 Introduction Part 4 I. The Difference Between Law and Politics Chapter 5 1. They Are All Activists Now Chapter 6 2. Is There a Distinction Between Law and Politics? Yes, and the Bush v. Gore Decision Proves It Chapter 7 3. Clarence Thomas's Challenge to the Rehnquist Court's Vision of Representative Government Chapter 8 4. Does Federal Tort Law Reform Unduly Infringe State Sovereignty? Part 9 II. Aid and Comfort to the Enemy Chapter 10 5. The Supreme Court Case That Pits Free Speech Against Church-State Separation Chapter 11 6. How Abortion Politics Impedes Clear Thinking on Other Issues Involving Fetuses Chapter 12 Why the Lawsuit Challenging Tennessee's "Choose Life" License Places Should Fail Chapter 13 Three Bad Reasons - and One Very Good Reason - to Oppose a Constitutional Amendment Barring Same-Sex Marriage Chapter 14 A Federal Appeals Court Rules That Universities Can Bar Military Recruiters Without Losing Federal Grant Money: A Welcome Result Based on Flawed Reasoning Chapter 15 10. Justice Scalia's Persuasive but Elitist Response to the Duck Hunting Controversy Chapter 16 11. Can a State Make It a Crime to Refuse to Identify Yourself to the Police? In a Narrow Ruling, the Supreme Court Says Yes Chapter 17 12. Why "Swift Boat Veterans for Truth" and other "527" Organizations Can't Be Silenced Chapter 18 13. Does the Constitution Permit the Blue States to Secede? With Permission, Perhaps; Unilaterally, No Chapter 19 14. How the Schiavo Federal Court Case Might Have Been Won Part 20 III. In Defense of Liberal Judging Chapter 21 15. Washington Yankees in King Arthur's Court: The Supreme Court Journeys to 18th Century England to Define the Rights of 21st Century Americans Chapter 22 16. How a Recent Supreme Court Public Housing Decision "Exiles Compassion from the Province of Judging" Chapter 23 17. Could Justice Scalia's Affirmative Action Dissent Become Self-Fulfilling Prophecy? Chapter 24 18. Is There a Constitutional Right to Sexual Privacy? Finding None, a Federal Appeals Court Upholds Alabama's Sex Toy Prohibition Part 25 IV. Liberty, Security, and War Chapter 26 19. What is an "Unlawful Combatant," and Why It Matters: The Status of Detained al Qaeda and Taliban Fighters Chapter 27 20. The Justice Department's Change of Heart Regarding Torture: A Fair-Minded and Praiseworthy Analysis That Could Have Gone Still Further Chapter 28 21. Who Decides Whether Yaser Hamdi, or Any Other Citizen, Is an Enemy Combatant? Chapter 29 22. Bush Loses in the Supreme Court and America Wins Chapter 30 23. Is Iraq in "Material Breach" of its Obligations under the U.N. Resolution? A Geopolitical Question, Not Simply a Legal One Chapter 31 24. Is the War on Iraq Lawful? Chapter 32 25. Why Congressional Power to Declare War Does Not Provide an Effective Check on the President Chapter 33 26. Kerry Stands By His Iraq Vote, and with Bush, Against Constitutional Principles Part 34 V. The Global Village Chapter 35 27. When American States Execute Citizens of Foreign Countries: The Case of Gerardo Valdez Chapter 36 28. Can One National Arrest the Foreign Minister of Another? The World Court Says No Chapter 37 29. Should Foreigners Be Permitted to Make Campaign Contributions to U.S. Candidates? Surprisingly, the Answer May Be Yes Chapter 38 30. The Hidden International Influence in the Supreme Court Decision Barring Executions of the Mentally Retarded Chapter 39 31. The Use of Foreign Law in American Constitutional Interpretation: A Revealing Colloquy Between Justices Scalia and Breyer Chapter 40 32. Can Ethnic Hatred Be Eliminated by Eliminating Ethnicity? The Rwanda Experiment Chapter 41 33. What a Chinese Height Discrimination Case Says About Chinese (and American) Constitutional Law Part 42 The Rule of Law(yers) Chapter 43 34. Debate over an ABA Legal Ethics Rule Underscores Lawyers' Competing Obligations to Keep Secret