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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, which analyzes the justice system's response to sexual misconduct by children and adolescents in the United States, discusses American society's failure to consider the developmental status of adolescent sex offenders. Too often, the author argues, the American legal system ignores age and developmental status when adjudicating young sexual offenders, in many cases responding as they would to an adult.

This book aims to resolve a puzzle: how can two systems of competition law and policy, whose enforcement and judicial institutions employ similar concepts and legal language, reach very different results on a number of current, significant antitrust issues? The most important provisions of the Sherman Act and the competition sections of the Treaty Founding the European Union are striking similar, but a combination of differences in social values, political institutions, and legal precedent retard close convergence. The work explores the main contested areas of contemporary antitrust: mergers, price discrimination, predatory pricing, exclusive supply, conditional rebating, and intellectual property in the context of dynamic competition. In each area we focus on how the prevalent antitrust analyses differ between the EU and the U.S., the policy ramifications of these differences, and how the analyses used by the enforcement authorities or the courts in each of these areas relate to those in other areas. The book also tracks several substantive themes that appear across the chapters, such as pricing incentives and constraints, welfare effects, and whether competition tends to be viewed as an efficiency generating process or as rivalry. We conclude with forecasts and suggestions about how greater compatibility if not convergence might ultimately be attained.

Building the Prison State is a new look at why the United States locks millions of people behind bars, in harsh conditions, with little opportunity to better themselves, for long periods of time. Drawing on the story of one high incarceration state between 1950 and 2016, the book argues that racial conflicts led to the bureaucratization and modernization of policing, courts, and corrections. The book demonstrates that policymakers’ investments in carceral capacity in the 1960s and 1970s built the foundation for the punitive carceral state by empowering law enforcement and victims and incentivizing tough-on-crime political posturing. As a result, despite the high fiscal costs and grave collateral consequences, politicians from both sides of the aisle advocated for more prisons and longer prison sentences. Richly contextualized in Florida and the nation’s partisan and racial politics, the book takes readers through civil rights protests, lawsuits over prison conditions, attempts at sentencing reform, the advent of the War on Drugs, and the rise of conservative politics. By focusing on the choices made by politicians, bureaucrats, lawyers, and activists, the book demonstrates that mass incarceration was not inevitable. It concludes that reversing prison growth will require changing political incentives and developing a new ideological basis for criminal punishment.

One of the most astonishing aspects of juvenile crime is how little is known about the impact of the policies and programs put in place to fight it. The most commonly used strategies and programs for combating juvenile delinquency problems primarily rely on intuition and fads. Fortunately, as a result of the promising new research, these deficiencies in our juvenile justice system might quickly be remedied. The book demonstrates here that as crime rates have fallen, researchers have identified more connections between specific risk factors and criminal behavior, while program developers have discovered a wide array of innovative interventions. The result of all this activity, it reveals, has been the revelation of a few prevention models that reduce crime much more cost-effectively than popular approaches such as tougher sentencing, D.A.R.E., boot camps, and “scared straight” programs. This book presents the most promising of these prevention programs, their histories, the quality of evidence to support their effectiveness, the public policy programs involved in bringing them into wider use, and the potential for investments and developmental research to increase the range and quality of programs.

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 gathers fourteen essays on torture, addressing its complexities from the perspectives of psychology, history, philosophy, law, and cultural commentary. It appears in the wake of the American “War on Terror,” and the apparent evaporation of a broad consensus in international law, the U.S. legal community, and public thinking that torture is never an acceptable act, even in war. The chapters of the book seek to understand the historical and cultural roots of torture; to assess its impacts on survivors, their societies, and those who engage in it or with its victims; to consider philosophical arguments about its justification; and to consider how law and lawyers should confront the problem of torture. While there is no single message or thesis running throughout the book, all of the chapters seek to bring out the complexity of torture as a social, psychological, legal and ethical problem. The introductory chapter, by torture survivor Albie Sachs, who went on to become a justice on the Constitutional Court of South Africa, demonstrates many of the challenges that torture creates for a society, and for conceiving justice in the wake of torture. Many of the subsequent chapters address the possibilities and difficulties for law and social institutions to respond effectively to torture by creating legal frameworks and structural barriers to guard against the temptations that torture offers. While none of the chapters defend using torture, many grapple with the difficulties of explaining convincingly why ethics absolutely prohibits torture.

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.

This series serves as a biography of the U.S. Constitution, surveying the congressional history behind its development. In a rare examination of the role that both the legislative and executive branches have played in the development of constitutional interpretation, the series shows how the actions and proceedings of these branches reveal perhaps even more about constitutional disputes than Supreme Court decisions of the time. The centerpiece for the fourth volume in this series is the great debate over slavery and how this divisive issue led the country into the maelstrom of the Civil War. From the Jacksonian revolution of 1829 to the secession of Southern states from the Union, the book provides an unrivaled analysis of the significant constitutional events—the Wilmot Proviso, the Compromise of 1850, the Kansas-Nebraska Act, the Lincoln-Douglas Debates, and “Bleeding Kansas”—that led up to the war. Exploring how slavery was addressed in presidential speeches and debated in Congress, the book shows how the Southern Democrats dangerously diminished federal authority and expanded states' rights, threatening the nation's very survival.

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.

We live in an era defined by corporate greed and malfeasance—one in which unprecedented accounting frauds and failures of compliance run rampant. In order to calm investor fears, revive perceptions of legitimacy in markets, and demonstrate the resolve of state and federal regulators, a host of reforms, high-profile investigations, and symbolic prosecutions have been conducted in response. But are they enough? This book argues that even with recent legal reforms, corporate criminal law continues to be ineffective. As evidence, this book considers the failure of courts and legislatures to fashion liability rules that fairly attribute blame for organizations. It analyzes the games that corporations play to deflect criminal responsibility. And it also demonstrates how the exchange of cooperation for prosecutorial leniency and amnesty belies true law enforcement. But none of these factors trump the fact that there is no single constituency or interest group that strongly and consistently advocates the importance and priority of corporate criminal liability. In the absence of a new standard of corporate liability, the power of regulators to keep corporate abuses in check will remain insufficient.

Enormous changes are occurring in our capital markets as shareholder activists become increasingly prominent, institutional investors gain power, and capital markets intermediaries such as proxy advisory firms play increasingly important roles. Corporations, and their boards of directors, are also increasingly uncertain how to respond to these new dynamics and adhere to predefined fiduciary duties to stockholders. The uncertainty has led to schizophrenic responses,, including the increasing use of dual-class stock and wholesale corporate governance changes of uncertain validity designed to fight off or placate certain shareholder groups. We believe that these enormous changes merit a review of corporate law to examine needed adjustments for these revolutionary times. For example, much of the case law governing corporate conduct was created in another time–the 1980s–and designed to meet another disruptive force–hostile takeovers. Is it time to reexamine this case law and create new laws for possibly different threats? Alternatively, statutory laws such as the rules governing appraisal rights seem ripe for a complete review in the wake of appraisal arbitrage. In this book, we bring together many of the leading scholars of Delaware corporate law to examine these issues. The fourteen chapters, and a judicial overview by Delaware Chief Justice Leo E. String Jr., cast light on the current tensions in Delaware law and how Delaware’s courts and legislature should address them.

Over the past thirty-five years, federal courts have dramatically retreated from actively promoting school desegregation. In the meantime, state courts have taken up the mantle of promoting the vision of educational equity originally articulated in Brown v. Board of Education. This book provides a detailed analysis of why the state courts have taken on this active role and how successful their efforts have been. Since 1973, litigants have challenged the constitutionality of education finance systems in forty-five states on the grounds that they deprive many poor and minority students of adequate access to a sound education. While the plaintiffs have won in the majority of these cases, the decisions are often branded “judicial activism”—a stigma that has reduced their impact. To counter the charge, the book persuasively defends the courts' authority and responsibility to pursue the goal of educational equity. It envisions their ideal role as supervisory and offers innovative recommendations on how the courts can collaborate with the executive and legislative branches to create a truly democratic educational system.

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.

Why should the law enforce contracts? This book argues that contract law exists primarily to support markets but that markets should be understood as normatively desireable for reasons beyond mere economic efficiency. This book thus updates the doux commerce argument of 18th-century theorists such as Montesquieu and Adam Smith, who saw markets as an important and largely positive moral and political influence. Commerce tends to inculcate a set of moral habits -- virtues -- that support liberal political regimes by forcing market participants to view the world from another's point of view. Markets provide a framework for social cooperation that does not require deep moral or political agreement or tribal solidarity. Finally, well-functioning markets produce wealth and prosperity, which can have an ameliorative effect a host of social evils. Contract law tends to strengthen and extend markets and is valuable for that reasons. Placing markets at the center of the normative defense of contract law has concrete implications for how we should think about doctrinal issues such as contract formation, remedies, and the treatment of boilerplate agreements. In all of these contexts, it shifts attention away from the highly individualistic focus of much of contemporary contract law theory and toward system concerns with how contract law structures markets. Finally, because markets at times become pernicious, this book's argument also provides insight into the limits of contract law.

Drone technology is racing ahead, while efforts to develop guidelines for the use of remotely piloted weapons remain underdeveloped. The emergence of lethal drones raises new questions for the ethical and legal analysis of the use of armed force and the impact on human rights. Drones have the capacity to be more accurate and discriminating, yet they do not eliminate the problems of collateral damage and civilian harm. They reduce risks for those employing such weapons, although by making the use of force appear easier and less costly, they may increase the propensity to resort to force. The lack of transparency about criteria for identifying targets and launching strikes impedes democratic accountability. Drones are considered a means of countering terrorism, but the ability to kill specific targets has not brought success in countering terrorist insurgencies in Afghanistan, Pakistan, and Yemen. This book presents the work of leading scholars and policy experts addressing these and other related questions. The authors highlight the need for the United States and other nations to work together in establishing an international regulatory framework to ensure that drones are used in compliance with ethical standards and the principles of international law.

For much of the twentieth century, industrialized nations addressed social problems, such as workers' compensation benefits and social welfare programs, in terms of spreading risk. But in recent years a new approach has emerged: using risk both as a way to conceive of and address social problems and as an incentive to reduce individual claims on collective resources. This book explores this new approach from a variety of perspectives. The first part of the book focuses on the interplay between risk and insurance in various historical and social contexts. The second part examines how risk is used to govern fields outside the realm of insurance, from extreme sports to policing, mental health institutions, and international law. Offering an original approach to risk, insurance, and responsibility, this book demonstrates that risk has moved well beyond its origins in the insurance trade to become a central organizing principle of social and cultural life.