Rethinking Constitutional Law

Maltz reformulates the justification for originalist review and refines originalist theory itself; he argues that a pure originalist approach mandates excessive judicial intervention under the Constitution; and he shows that most nonoriginalist theorists have failed to provide a sufficient functional justification for nonoriginalist intervention.

In an ere as morally confused as ours, Stoner argues, we at least ought to know what we've abandoned or suppressed in the name of judicial activism and the modern rights-oriented Constitution. Having lost our way, perhaps the common law, in its original sense, provides a way back, a viable alternative to the debilitating relativism of our current age.

Rethinking the New Deal Court: The Structure of a Constitutional Revolution challenges the prevailing account of the Supreme Court of the New Deal era, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In this view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change. Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between various lines of doctrine, Cushman charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role.

Some of today’s top legal thinkers consider the ways that legal thinking has bolstered—rather than corrected—injustice. Bringing together some of today’s top legal thinkers, this volume reimagines law in the twenty-first century, zeroing in on the most vibrant debates among legal scholars today. Going beyond constitutional jurisprudence as conventionally understood, contributors show the ways in which legal thinking has bolstered rather than corrected injustice. If conservative approaches have been well served by court-centered change, contributors to Rethinking Law consider how progressive ones might rely on movement-centered, legislative, and institutional change. In other words, they believe that the problems we face today are vastly bigger than can be addressed by litigation. The courts still matter, of course, but they should be less central to questions about social justice. Contributors describe how constitutional law supported a system of economic inequality; how we might rethink the First Amendment in the age of the internet; how deeply racial bias is embedded in our laws; and what kinds of changes are necessary. They ask which is more important: the laws or how they are enforced? Rethinking Law considers these questions with an eye toward a legal system that truly supports a just society. Contributors include Jedediah Purdy, David Grewal, Jamal Greene, Reva Siegel, Jocelyn Simonson, Aziz Rana

Contains 13 articles whose contributors believe there was a common thread linking the problems that plagued constitutional reform in the late 1980s and early 1990s and the politics of judicial review under the Charter of Rights and Freedoms. The essays combine legal, political, historical, and philosophical analysis, a Canadian liberal constitutionalist perspective, and critiques of the Supreme Court's Chartre decisions, the preoccupation with "rights talk", and other recent developments in constitutional law and politics. Annotation copyrighted by Book News, Inc., Portland, OR

Sovereignty and the sovereign state are often seen as anachronisms; Globalization and Sovereignty challenges this view. Jean L. Cohen analyzes the new sovereignty regime emergent since the 1990s evidenced by the discourses and practice of human rights, humanitarian intervention, transformative occupation, and the UN targeted sanctions regime that blacklists alleged terrorists. Presenting a systematic theory of sovereignty and its transformation in international law and politics, Cohen argues for the continued importance of sovereign equality. She offers a theory of a dualistic world order comprised of an international society of states, and a global political community in which human rights and global governance institutions affect the law, policies, and political culture of sovereign states. She advocates the constitutionalization of these institutions, within the framework of constitutional pluralism. This book will appeal to students of international political theory and law, political scientists, sociologists, legal historians, and theorists of constitutionalism.

Through a critical appraisal of the European Union and its legal system, this book evaluates the extent to which constitutionalism as an empirical idea and normative ideal can be adapted to institutions beyond the state.

Rethinking the New Deal Court: The Structure of a Constitutional Revolution challenges the prevailing account of the Supreme Court of the New Deal era, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In this view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change. Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between various lines of doctrine, Cushman charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role.