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From random security checks at airports to the use of risk assessment in sentencing, actuarial methods are being used more than ever to determine whom law enforcement officials target and punish. And with the exception of racial profiling on our highways and streets, most people favor these methods because they believe they are a more cost-effective way to fight crime. This book challenges this growing reliance on actuarial methods. These prediction tools, the author demonstrates, may in fact increase the overall amount of crime in society, depending on the relative responsiveness of the profiled populations to heightened security. They may also aggravate the difficulties that minorities already have obtaining work, education, and a better quality of life—thus perpetuating the pattern of criminal behavior. Ultimately, the author shows how the perceived success of actuarial methods has begun to distort our very conception of just punishment and to obscure alternate visions of social order. In place of the actuarial, he proposes instead a turn to randomization in punishment and policing, concluding that the presumption should be against prediction.

This book offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by the political goals and commitments of various actors, including judges. The presence of such influences is often considered highly problematic: if constitutional law is political and historical through and through, then what differentiates it from politics per se, and what gives it integrity and coherence? It argues that constitutional theory has as its (sometimes hidden) agenda the ambition of showing how constitutional law can escape from history and politics, while much constitutional history seeks to identify an historically true meaning of the constitutional text that, once uncovered, can serve as a corrective to subsequent deviations from that truth. Combining history and theory, the book analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Nowhere in our past can one find the golden age of apolitical constitutional thinking that a great deal of contemporary scholarship seeks or presupposes. Viewed over time, American constitutional law is a history of political dispute couched in constitutional terms. The book then claims that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time.

Confident Pluralism argues that we can and must live together peaceably in spite of deep and sometimes irresolvable differences over politics, religion, sexuality, and other important matters. We can do so in two important ways. The first is by insisting upon constitutional commitments in three areas of the law: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The second way to pursue Confident Pluralism is by embodying its aspirations of tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (protests, strikes, and boycotts); and (3) our relationships across difference. Confident Pluralism suggests that when it comes to these civic practices, it is often better to tolerate than to protest, better to project humility than defensiveness, and better to wait patiently for the fruits of persuasion than to force the consequences of coercion. Confident Pluralism will not give us the American Dream. But it might help avoid the American Nightmare

This book argues that political conservatives and libertarians should embrace class action lawsuits as the best way to police the marketplace. Contrary to common misperceptions, conservatives and libertarians believe that markets need some rules to form and work well. This raises the question of who is best to enforce the rules? The government? Or the injured persons themselves? Drawing on the theory of privatization, the book shows that, for all the same reasons they prefer private-sector solutions to other problems, they should prefer the so-called “private” attorney general over the public attorney general. For small harms, this means private class action lawyers. This is not just theory. Empirical studies show that many of the arguments critics make about class actions are not accurate: class actions are not meritless lawsuits, lawyers do take all of the money in fees, and class actions improve deterrence of misconduct. Nonetheless, the current system is not perfect. The book concludes with a few suggested reforms to make the system even better.

While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their positions to advance personal views. Advocating a different approach—one that eschews ideology but still values personal perspective—this book makes a case for the centrality of individual conscience in constitutional decision making. The book argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, it goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what he calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers. The book concludes that the need for these qualities in judges—as well as in lawyers and citizens—is implicit in our constitutional practices, and that, without them, judicial review would forfeit both its own integrity and the credibility of the courts themselves.

This book makes a case for reversing the rapid decline of the trial before we lose one of our public culture's greatest achievements. As a practice that is adapted for modern times yet rooted in ancient wisdom, the trial is uniquely suited to balance the tensions—between idealism and realism, experts and citizens, contextual judgment and reliance on rules—that define American culture. Arguing that many observers make a grave mistake by taking a complacent or even positive view of the trial's demise, the author concludes by laying out the catastrophic consequences of losing an institution that so perfectly embodies democratic governance.

This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.

This book attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. The book finds that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. This book reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.

This is a book about the general structure of proof, how law sometimes recognizes that structure, how it often does not, and what might happen if legal scholars, jurists, and lawyers think about that structure in unfamiliar contexts. It identifies the essential elements of the process of proof – for any proposition in any discipline – as entailing principles of admissibility, significance, and closure as well as standards of proof and burdens of proof. While the law explicitly recognizes the need for those elements in the proof of propositions of fact, the law typically does not formally apply those elements to the proof of propositions of law. But because the distinction between factual and legal claims is conventional rather than ontological or epistemological, that simply means that those elements operate in the background, as they are an inescapable feature of the pursuit of knowledge in any context. I aim to bring those elements, especially the standard of proof, to the foreground in legal discourse concerning claims about the existence and meaning of law. Hopefully, thinking about proof of law in this fashion will clarify legal discourse.

From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression. If the connection between democracy and the freedom of speech is such a vital one, why would so many governmental leaders seek to quiet their citizens? This book traces two rival traditions in American culture—suppression of speech and dissent as a form of speech—to provide an unparalleled overview of the law, history, and politics of individual rights in the United States. Charting the course of free expression alongside the nation's political evolution, from the birth of the Constitution to the quagmire of the Vietnam War, this book argues that our level of freedom is determined not only by the Supreme Court, but also by cultural, social, and economic forces. Along the way, it pinpoints the struggles of excluded groups—women, African Americans, and laborers—to participate in democratic government as pivotal to the development of free expression.

The gay rights question asks whether the second-class legal status of gay people should be changed. This book shows the powerful legal and moral case for gay equality, but argues that courts cannot and should not impose it. This book offers an unusually nuanced analysis of the most pressing gay rights issues. Does antigay discrimination violate the Constitution? Is there any sound moral objection to homosexual conduct? Are such objections the moral and constitutional equivalent of racism? Must state laws recognizing same-sex unions be given effect in other states? Should courts take account of popular resistance to gay equality? The book sheds new light on all these questions. Sure to upset purists on either side of the debate, this book criticizes the legal arguments advanced both for and against gay rights. Just as important, it places these arguments in broader moral and social contexts, offering original, pragmatic, and workable legal solutions.

In Kelo v. City of New London (2005), the Supreme Court ruled that government can take private property and give it to another private owner in order to promote “economic development,” even though the Fifth Amendment only allows condemnations that are for a “public use.” The ruling was a grave error. Both originalist and most “living constitution” theories of constitutional interpretation lead to the conclusion that economic development and the closely related “blight” condemnations are not permissible public uses. Economic development and blight condemnations also inflict great harm, often destroying far more economic value than they create. The people the New London takings victimized had little political power, while the influential Pfizer Corporation hoped to benefit from the takings and played an important role in pushing them through. The city’s poorly conceived development plan failed, and the condemned land lies empty and unused to this day. The Kelo decision triggered a massive and unprecedented political backlash, with 45 states enacting eminent domain reform legislation in response. Despite its flaws, the Kelo decision has led to some genuine progress. The closely divided, 5-4, ruling shattered what many believed to be a consensus supporting the view that virtually any taking qualifies as a “public use.” The Supreme Court may well overrule or limit Kelo in the future. And the political backlash led to the enactment of meaningful reforms in a number of states. Future success in curbing eminent domain abuse will require a combination of both legal and political action.

In Kelo v. City of New London (2005), the Supreme Court ruled that government can take private property and give it to another private owner in order to promote “economic development,” even though the Fifth Amendment only allows condemnations that are for a “public use.” The ruling was a grave error. Both originalist and most “living constitution” theories of constitutional interpretation lead to the conclusion that economic development and the closely related “blight” condemnations are not permissible public uses. Economic development and blight condemnations also inflict great harm, often destroying far more economic value than they create. The people the New London takings victimized had little political power, while the influential Pfizer Corporation hoped to benefit from the takings and played an important role in pushing them through. The city’s poorly conceived development plan failed, and the condemned land lies empty and unused to this day. The Kelo decision triggered a massive and unprecedented political backlash, with 45 states enacting eminent domain reform legislation in response. Despite its flaws, the Kelo decision has led to some genuine progress. The closely divided, 5-4, ruling shattered what many believed to be a consensus supporting the view that virtually any taking qualifies as a “public use.” The Supreme Court may well overrule or limit Kelo in the future. And the political backlash led to the enactment of meaningful reforms in a number of states. Future success in curbing eminent domain abuse will require a combination of both legal and political action.

For centuries, the writ of habeas corpus has served as an important safeguard against miscarriages of justice, and today it remains at the center of some of the most contentious issues of our time—among them terrorism, immigration, crime, and the death penalty. Yet, in recent decades, habeas has been seriously abused. This book argues that habeas should be exercised with greater prudence. Through historical, empirical, and legal analysis, as well as illustrative case studies, the authors examine the current use of the writ in the United States and offer reform proposals to help ensure its ongoing vitality in today's justice system.

Congress and the president are not the only branches that deal with fiscal issues in times of war. This book focuses on the role of federal courts in fiscal matters during warfare and high-cost national defense emergencies. It argues that a judicial power of the purse becomes evident upon examining the budgetary effects of judicial decision making. The book provides substantial evidence that judges are willing—maybe even eager—to redirect private monies into government hands when the country is in peril, but when the judges receive convincing cues that ongoing wartime activities undermine the nation's interests, they are more likely to withhold funds from the government by deciding cases in favor of private individuals and entities who show up in court. The book focuses on environmental factors in judicial decision making.

Justice Scalia: Rhetoric and the Rule of Law offers a novel collection of interrelated and interdisciplinary essays by a diverse and impressive group of scholars that discuss the rhetoric of the late Justice Antonin Scalia as it relates to the rule of law. Justice Scalia authored numerous opinions during his thirty years as Associate Justice of the Supreme Court. Justice Scalia was well known for his vigorous advocacy in favor of an “originalist” or “new textualist” approach to legal interpretation. His fame came in part from a number of stinging dissents criticizing the Court’s jurisprudential methodology for failing to adhere to originalist or textualist interpretive principles. There will certainly be many efforts to delineate and assess Justice Scalia’s jurisprudence with regard to its legitimacy and effects on American law. The book takes a very different tack. The contributors discuss the rhetorical strategies in Justice Scalia’s opinions rather than the logic of his legal arguments. The focus is on “rhetoric” in its full classical sense, not simply as a reference to style or ornamentation. As defined by Aristotle, rhetoric is the capacity to see the available arguments in any given situation. The guiding theme of this book is that Justice Scalia enacts his vision of the Rule of Law through his rhetorical framing. The medium is the message, and the form is the substance.

Pulling the rug out from debates about interpretation, this book joins together learning from law, linguistics, and cognitive science to illuminate the fundamental issues and problems in this highly contested area. The book argues that statutory interpretation is alive, well, and not in need of the major overhaul that many have suggested. Rather, it suggests, the majority of people understand their rights and obligations most of the time, with difficult cases occurring in circumstances that we can predict from understanding when our minds do not work in a lawlike way. The book explains that these cases arise because of the gap between our inability to write crisp yet flexible laws on one hand and the ways in which our cognitive and linguistic faculties are structured on the other. Making our lives easier and more efficient, we are predisposed to absorb new situations into categories we have previously formed—but in the legislative and judicial realms this can present major difficulties. The provides an introduction to statutory interpretation, rejecting the extreme arguments that judges have either too much or too little leeway, and explaining how and why a certain number of interpretive problems are simply inevitable.

No one likes paying taxes, much less the process of filing tax returns. For years, would-be reformers have advocated replacing the return-based mass income tax with a flat tax, federal sales tax, or some combination thereof. Congress itself has commissioned studies on the feasibility of a system of exact withholding. But might the much-maligned return-based taxation method serve an important yet overlooked civic purpose? This book argues that filing taxes can strengthen fiscal citizenship by prompting taxpayers to reflect on the contract they have with their government and the value — or perceived lack of value — they receive in exchange for their money. It traces the mass income tax to its origins as a means for raising revenue during World War II. Even then, debates raged over the merits of consumption-based versus income taxation, as well as whether taxes should be withheld from payroll or paid at the time of filing. The result is the income tax system we have today — a system whose maddening complexity, intended to accommodate citizens in widely different circumstances, threatens to outweigh any civic benefits. If sitcoms and political cartoons are any indication, public understanding of the income tax system is badly in need of a corrective. The author clears up some of the most common misconceptions and closes with suggestions for how the current system could be substantially simplified to better serve its civic purpose.

The George W. Bush administration's ambitious claims of unilateral executive authority raised deep concerns among constitutional scholars, civil libertarians, and ordinary citizens alike. But Bush's attempts to assert his power are only the culmination of a near-thirty-year assault on the basic checks and balances of the U.S. government—a battle waged by presidents of both parties, and one that, as the author warns in this book, threatens to utterly subvert the founders' vision of representative government. Tracing this tendency back to the first Reagan administration, the author shows how this era of “aggressive presidentialism” has seen presidents exerting ever more control over nearly every arena of policy, from military affairs and national security to domestic programs. Driven by political ambition and a growing culture of entitlement in the executive branch—and abetted by a complaisant Congress, riven by partisanship—this presidential aggrandizement has too often undermined wise policy making and led to shallow, ideological, and sometimes outright lawless decisions. The solution, the author argues, will require a multipronged program of reform, including both specific changes in government practice and broader institutional changes aimed at supporting a renewed culture of government accountability. From the war on science to the mismanaged war on terror, this book outlines the disastrous consequences of the unchecked executive and issues a stern wake-up call to all who care about the fate of our long democratic experiment.

Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless — we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by the text determined? Should the communicative meaning of texts be decisive, or at least influential? To fully engage and probe these questions of interpretation, this volume draws upon a variety of experts from several fields, who collectively examine the interpretation of legal texts. In The Nature of Legal Interpretation, the contributors argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly, expert analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts. Offering insightful new interdisciplinary perspectives on originalism and legal interpretation, these essays put forth a significant and provocative discussion of how best to characterize the nature of language in legal texts.