|“A Great Power of Attorney”: Understanding the Fiduciary Constitution
What kind of document is the United States Constitution and how does that characterization affect its meaning? Those questions are seemingly foundational for the entire enterprise of constitutional theory, but they are strangely under-examined. Legal scholars Gary Lawson and Guy Seidman propose that the Constitution, for purposes of interpretation, is a kind of fiduciary, or agency, instrument. The founding generation often spoke of the Constitution as a fiduciary document—or as a “great power of attorney,” in the words of founding-era legal giant James Iredell. Viewed against the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and its experience, the Constitution is best read as granting limited powers to the national government, as an agent, to manage some portion of the affairs of “We the People” and its “posterity.” What follows from this particular conception of the Constitution—and is of greater importance—is the question of whether, and how much and in what ways, the discretion of governmental agents in exercising those constitutionally granted powers is also limited by background norms of fiduciary obligation. Those norms, the authors remind us, include duties of loyalty, care, impartiality, and personal exercise. In the context of the Constitution, this has implications for everything from non-delegation to equal protection to so-called substantive due process, as well as for the scope of any implied powers claimed by the national government.
In mapping out what these imperatives might mean—such as limited discretionary power, limited implied powers, a need to engage in fair dealing with all parties, and an obligation to serve at all times the interests of the Constitution’s beneficiaries—Lawson and Seidman offer a clearer picture of the original design for a limited government.
|Arguments about Abortion: Personhood, Morality, and Law
Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion presume an answer to the question of when personhood begins? Can a law which permits late abortion but not infanticide be morally justified? These are just some of the questions this book sets out to address.
With an extended analysis of the moral and legal status of abortion, Kate Greasley offers an alternative account to the reputable arguments of Ronald Dworkin and Judith Jarvis Thomson and instead brings the philosophical notion of ‘personhood’ to the foreground of this debate.
Structured in three parts, the book will (I) consider the relevance of prenatal personhood for the moral and legal evaluation of abortion; (II) trace the key features of the conventional debate about when personhood begins and explore the most prominent issues in abortion ethics literature: the human equality problem and the difference between abortion and infanticide; and (III) examine abortion law and regulation as well as the differing attitudes to selective abortion. The book concludes with a snapshot into the current controversy surrounding the scope of the right to conscientiously object to participation in abortion provision.
MacKinnon, Catharine A.
The minuscule motion of a butterfly’s wings can trigger a tornado half a world away, according to chaos theory. Under the right conditions, small simple actions can produce large complex effects. In this timely and provocative book, Catharine A. MacKinnon argues that the right seemingly minor interventions in the legal realm can have a butterfly effect that generates major social and cultural transformations.
Butterfly Politics brings this incisive understanding of social causality to a wide-ranging exploration of gender relations. The pieces collected here―many published for the first time―provide a new perspective on MacKinnon’s career as a pioneer of legal theory and practice and an activist for women’s rights. Its central concerns of gender inequality, sexual harassment, rape, pornography, and prostitution have defined MacKinnon’s intellectual, legal, and political pursuits for over forty years. Though differing in style and approach, the selections all share the same motivation: to end inequality, including abuse, in women’s lives. Several mark the first time ideas that are now staples of legal and political discourse appeared in public―for example, the analysis of substantive equality. Others urge changes that have yet to be realized.
The butterfly effect can animate political activism and advance equality socially and legally. Seemingly insignificant actions, through collective recursion, can intervene in unstable systems to produce systemic change. A powerful critique of the legal and institutional denial of reality that perpetuates practices of gender inequality, Butterfly Politics provides a model of what principled, effective, socially conscious engagement with law looks like.
|The Campus Rape Frenzy: The Attack on Due Process at America’s Universities
Johnson, Robert David
In recent years, politicians led by President Obama and prominent senators and governors have teamed with extremists on campus to portray our nation’s campuses as awash in a violent crime wave—and to suggest (preposterously) that university leaders, professors, and students are indifferent to female sexual assault victims in their midst. Neither of these claims has any bearing in reality. But they have achieved widespread acceptance, thanks in part to misleading alarums from the Obama administration and biased media coverage led by the New York Times.
The frenzy about campus rape has helped stimulate—and has been fanned by—ideologically skewed campus sexual assault policies and lawless commands issued by federal bureaucrats to force the nation’s all-too-compliant colleges and universities essentially to presume the guilt of accused students. The result has been a widespread disregard of such bedrock American principles as the presumption of innocence and the need for fair play.
This book uses hard facts to set the record straight. It explores, among other things, about two dozen of the many cases since 2010 in which innocent or probably innocent students have been branded as sex criminals and expelled or otherwise punished by their colleges. And it shows why all students—and, eventually, society as a whole—are harmed when our nation’s universities abandon pursuit of truth and seek instead to accommodate the passions of the mob.
|Dirty Secrets: How Tax Havens Destroy the Economy
The Panama Papers were a reminder of how the superrich are allowed to hide their wealth from the rest of us. Dirty Secrets uncovers the extent of the corruption behind this crisis and shows what needs to be done in the face of this unregulated spread of rampant greed.
Tax havens, we are often told, are part of the global architecture of capitalism, providing a freedom from regulation necessary to make markets work. In this book, leading authority Richard Murphy uncovers the truth behind this lie. The fact of the matter is that this increasingly popular practice threatens the foundations of democracy, sowing mistrust and creating a regime based upon opacity.
As Murphy shows, how we manage our economy is a political decision, and one that can be changed. Dirty Secrets proposes ways to regulate tax havens and what the world might look like without them.
|Framing the Farm Bill: Interests, Ideology, and the Agricultural Act of 2014
Bosso, Christopher J.
In January 2014, for the first time in the history of federal farm legislation going back to the Great Depression, all four members of the US House of Representatives from Kansas voted against the Farm Bill, despite pleas by the state’s agricultural leaders to support it. Why? The story of the Agricultural Act of 2014, as it unfolds in Framing the Farm Bill, has much to tell us about the complex nature of farm legislation, food policy, and partisan politics in present-day America.
The Farm Bill is essential to the continuation of the many programs that structure agriculture in this country, from farm loans, commodity subsidies, and price supports for farmers to food support for the poor, notably food stamps. It was in the 1970s, with urbanization increasingly undermining political interest in farm programs, that rural legislators added the food stamp program to the Farm Bill to build support among urban and suburban legislators. Christopher Bosso offers a deft account of how this strategy, which over time led to the food stamp program becoming the largest expenditure in the Farm Bill, ran into the wave of conservative Republicans swept into Congress in 2010. With many of these new members objecting to the very existence of the food stamp program—and in many cases to government’s involvement in agriculture, period—and with Democrats vehemently opposing reductions, especially in light of the 2008 recession, the stage was set for a battle involving some of the most crucial issues in American life.
Framing the Farm Bill is an enlightening look at federal agricultural policy—its workings, its history, and its present state—as well as the effect federal legislation has on farming practices, the environment, and our diet, in a thoroughly readable primer on the politics of food in America.
|Human Rights of, by, and for the People: How to Critique and Change the U.S. Constitution
KF4749 .H75 2017
Together, the US Constitution and the Bill of Rights comprise the constitutional foundation of the United States. These–the oldest governing documents still in use in the world–urgently need an update, just as the constitutions of other countries have been updated and revised. Human Rights Of, By, and For the People brings together lawyers and sociologists to show how globalization and climate change offer an opportunity to revisit the founding documents. Each proposes specific changes that would more closely align US law with international law. The chapters also illustrate how constitutions are embedded in society and shaped by culture. The constitution itself sets up contentious relationships among the three branches of government and between the federal government and each state government, while the Bill of Rights and subsequent amendments begrudgingly recognize the civil and political rights of citizens. These rights are described by legal scholars as “negative rights,” specifically as freedoms from infringements rather than as positive rights that affirm personhood and human dignity. The contributors to this volume offer “positive rights” instead. The Universal Declaration of Human Rights (UDHR), written in the middle of the last century, inspires these updates. Nearly every other constitution in the world has adopted language from the UDHR.
The contributors use intersectionality, critical race theory, and contemporary critiques of runaway economic inequality to ground their interventions in sociological argument.
|The Imperial Presidency and the Constitution
K3165 .I47 2017
Time and again, in recent years, the charge has been made that sitting presidents have behaved “imperially,” employing authorities that break the bounds of law and the Constitution. It is now an epithet used to describe presidencies of both parties. The Imperial Presidency and the Constitution examines this critical issue from a variety of perspectives: analyzing the president’s role in the administrative state, as commander-in-chief, as occupant of the modern “Bully Pulpit,” and, in separate essays, addressing recent presidents’ relationship with Congress and the Supreme Court. The volume also deepens the discussion by taking a look back at Abraham Lincoln’s expansive use of executive power during the Civil War where the tension between law and necessity were at their most extreme, calling into question the “rule of law” itself. The volume concludes with an examination of how the Constitution’s provision of both “powers and duties” for the president can provide a roadmap for assessing the propriety of executive behavior.
|The Law of the United States: An Introduction
The Law of the United States provides an introduction and overview of the American legal system. With an emphasis throughout on up-to-date case law and current literature, it is an ideal first point of entry for students and practitioners alike and a starting point for further independent research.
Professor Hay provides a concise and straightforward explanation of the law and legal vocabulary as well as an introduction to the different types of law and legal techniques. He explains the role of Congress, the Executive and the Courts. He introduces the reader to the complexities of federal and state law, emphasizing that the many areas of public law and virtually all areas of private law are the separate law of the fifty States, the District of Columbia, and the (U.S.-dependent) Territories in which common language, legal tradition, history and culture have served to bring about a basic legal unity.
|Managed Speech: The Roberts Court’s First Amendment
Magarian, Gregory P.
Our constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Court’s First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom.
This timely book shows how the Roberts Court’s free speecOur constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Courts First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom.
This timely book shows how the Roberts Court’s free speech decisions embody a version of expressive freedom that Professor Magarian calls “managed speech”. Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts’ ascent in 2005 and Justice Antonin Scalia’s death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate.
Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: “dynamic diversity.” A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This book offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.h decisions embody a version of expressive freedom that Professor Magarian calls “managed speech.” Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts’ ascent in 2005 and Justice Antonin Scalia’s death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate.
Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: “dynamic diversity.” A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This book offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.
|Meltdown: The FInancial Crisis, Consumer Protection, and the Road Forward
Open for business in 2011, the CFPB was Congress’s response to the financial catastrophe that shattered millions of middle-class and lower-income households and threatened the stability of the global economy. But only a few years later, with U.S. economic conditions on a path to recovery, there are already disturbing signs of the (re)emergence of the high-risk, high-reward credit practices that the CFPB was designed to curb. This book profiles how the Bureau has attempted to stop abusive and discriminatory lending practices in the mortgage and automobile lending sectors and documents the multilayered challenges faced by an untested new regulatory agency in its efforts to transform the broken–but lucrative–business practices of the financial services industry.
Authors Kirsch and Squires raise the question of whether the consumer protection approach to financial services reform will succeed over the long term in light of political and business efforts to scuttle it. Case studies of mortgage and automobile lending reforms highlight the key contextual and structural conditions that explain the CFPB’s ability to transform financial service industry business models and practices. Meltdown: The Financial Crisis, Consumer Protection, and the Road Forward is essential reading for a wide audience, including anyone involved in the provision of financial services, staff of financial services and consumer protection regulatory agencies, and fair lending and consumer protection advocates. Its accessible presentation of financial information will also serve students and general readers.
|(Re)structuring Copyright: A Comprehensive Path to International Copyright Reform
Gervais, Daniel J.
As the Internet continues to alter our online world, the structure of copyright in its current form becomes inadequate and unfit for purpose. In this bold and persuasive work, Daniel Gervais argues that the international copyright system is in need of a root and branch rethink. This ambitious and far-reaching book sets out to diagnose in some detail the problems faced by copyright, before eloquently mapping out a path for comprehensive and structured reform.This book’s main objectives are to identify structural and other deficiencies within the current system, and to outline a structured approach to copyright reform. Part I of the book is thus diagnostic in nature, Part II offers detailed and concrete pathways to improve the current system, whilst in the Epilogue, a clear path to revise the Berne Convention is proposed.Contributing a reasoned and novel voice to a debate that is all too often driven by ignorance and partisan self-interest, this book will be required reading for all copyright scholars and practitioners with an interest in the future direction of the field.
|The War on Sex
KF4754.5 .W37 2017
The past fifty years are conventionally understood to have witnessed an uninterrupted expansion of sexual rights and liberties in the United States. This state-of-the-art collection tells a different story: while progress has been made in marriage equality, reproductive rights, access to birth control, and other areas, government and civil society are waging a war on stigmatized sex by means of law, surveillance, and social control. The contributors document the history and operation of sex offender registries and the criminalization of HIV, as well as highly punitive measures against sex work that do more to harm women than to combat human trafficking. They reveal that sex crimes are punished more harshly than other crimes, while new legal and administrative regulations drastically restrict who is permitted to have sex. By examining how the ever-intensifying war on sex affects both privileged and marginalized communities, the essays collected here show why sexual liberation is indispensable to social justice and human rights.
|Why States Matter: An Introduction to State Politics
Moncrief, Gary F.
When it comes to voting, taxes, environmental regulations, social services, education, criminal justice, political parties, property rights, gun control, marriage and a whole host of other modern American issues, the state in which a citizen resides makes a difference. That idea–that the political decisions made by those in state-level offices are of tremendous importance to the lives of people whose states they govern–is the fundamental concept explored in this book. Gary F. Moncrief and Peverill Squire introduce students to the very tangible and constantly evolving implications, limitations, and foundations of America’s state political institutions, and accessibly explain the ways that the political powers of the states manifest themselves in the cultures, economies, and lives of everyday Americans, and always will.