A number of the essays scrutinize thinking about capital punishment. They examine why, following almost two decades of strong public support for the death penalty, public opinion in favor of it has recently begun to decline. Beyond Repair? presents some of the findings of the Capital Jury Project, a nationwide research initiative that has interviewed over one thousand people who served as jurors in capital trials. It looks at what goes through the minds of jurors asked to consider imposing the death penalty, how qualified they are to make such an important decision, and how well they understand the judge’s instructions. Contributors also investigate the risk of executing the innocent, the role that race plays in determining which defendants are sentenced to death, and the effect of expanded restrictions on access to federal appellate relief. The postscript contemplates the peculiarities of our contemporary system of capital punishment, including the alarming variance in execution rates from state to state.
Filled with current insights and analysis, Beyond Repair? will provide valuable information to attorneys, political scientists, criminologists, and all those wanting to participate knowledgeably in the debates about the death penalty in America.
Contributors. Ken Armstrong, John H. Blume, Theodore Eisenberg, Phoebe C. Ellsworth, Stephen P. Garvey, Samuel R. Gross, Sheri Lynn Johnson, Steve Mills, William A. Schabas, Larry W. Yackle, Franklin E. Zimring
Several contributors offer wide-ranging accounts of the workings of Congress. They look at lawmakers’ attitudes toward Congress’s role as a constitutional interpreter, the offices within Congress that help lawmakers learn about constitutional issues, Congress’s willingness to use its confirmation power to shape constitutional decisions by both the executive and the courts, and the frequency with which congressional committees take constitutional questions into account. Other contributors address congressional deliberation, paying particular attention to whether Congress’s constitutional interpretations are sound. Still others examine how Congress and the courts should respond to one another’s decisions, suggesting how the courts should evaluate Congress’s work and considering how lawmakers respond to Court decisions that strike down federal legislation. While some essayists are inclined to evaluate Congress’s constitutional interpretation positively, others argue that it could be improved and suggest institutional and procedural reforms toward that end. Whatever their conclusions, all of the essays underscore the pervasive and crucial role that Congress plays in shaping the meaning of the Constitution.
Contributors. David P. Currie, Neal Devins, William N. Eskridge Jr.. John Ferejohn, Louis Fisher, Elizabeth Garrett, Michael J. Gerhardt, Michael J. Klarman, Bruce G. Peabody, J. Mitchell Pickerill, Barbara Sinclair, Mark Tushnet, Adrian Vermeule, Keith E. Whittington, John C. Yoo
Some of the essays are broad in scope, reflecting on national character, patriotism, and political theory; exploring whether war and republican government are compatible; and considering in what sense we can be said to be in wartime circumstances today. Others are more specific, examining the roles of Congress, the presidency, the courts, and the international legal community. Throughout the collection, balanced, unbiased analysis leads to some surprising conclusions, one of which is that wartime conditions have sometimes increased, rather than curtailed, civil rights and civil liberties. For instance, during the cold war, government officials regarded measures aimed at expanding African Americans’ freedom at home as crucial to improving America’s image abroad.
Contributors. Sotirios Barber, Mark Brandon, James E. Fleming, Mark Graber, Samuel Issacharoff, David Luban, Richard H. Pildes, Eric Posner, Peter Spiro, William Michael Treanor, Mark Tushnet, Adrian Vermeule
Pickerill combines legislative histories, extensive empirical findings, and interviews with current and former members of Congress, congressional staff, and others. He examines data related to all of the federal legislation struck down by the Supreme Court from the beginning of the Warren Court in 1953 through the 1996–97 term of the Rehnquist Court. By looking at the legislative histories of Congressional acts that invoked the Commerce Clause and presented Tenth Amendment conflicts—such as the Child Labor Act (1916), the Civil Rights Act (1965), the Gun-Free School Zones Act (1990), and the Brady Bill (1994)—Pickerill illuminates how Congressional deliberation over newly proposed legislation is shaped by the possibility of judicial review. The Court’s invalidation of the Gun-Free School Zones Act in its 1995 ruling United States v. Lopez signaled an increased judicial activism regarding issues of federalism. Pickerill examines that case and compares congressional debate over constitutional issues in key pieces of legislation that preceded and followed it: the Violence Against Women Act of 1994 and the Hate Crimes Prevention Act of 1997. He shows that Congressional attention to federalism increased in the 1990s along with the Court’s greater scrutiny.
The contributors illuminate the breadth of developments that led to Brown, from the parallel struggles for social justice among African Americans in the South and Mexican, Asian, and Native Americans in the West during the late nineteenth century to the political and legal strategies implemented by the National Association for the Advancement of Colored People (naacp) in the twentieth century. Describing the decision’s impact on local communities, essayists explore the conflict among African Americans over the implementation of Brown in Atlanta’s public schools as well as understandings of the ruling and its relevance among Puerto Rican migrants in New York City. Assessing the legacy of Brown today, contributors analyze its influence on contemporary law, African American thought, and educational opportunities for minority children.
Contributors
Tomiko Brown-Nagin
Davison M. Douglas
Raymond Gavins
Laurie B. Green
Christina Greene
Blair L. M. Kelley
Michael J. Klarman
Peter F. Lau
Madeleine E. Lopez
Waldo E. Martin Jr.
Vicki L. Ruiz
Christopher Schmidt
Larissa M. Smith
Patricia Sullivan
Kara Miles Turner
Mark V. Tushnet
The Second Amendment is regularly invoked by opponents of gun control, but H. Richard Uviller and William G. Merkel argue the amendment has nothing to contribute to debates over private access to firearms. In The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, Uviller and Merkel show how postratification history has sapped the Second Amendment of its meaning. Starting with a detailed examination of the political principles of the founders, the authors build the case that the amendment's second clause (declaring the right to bear arms) depends entirely on the premise set out in the amendment's first clause (stating that a well-regulated militia is necessary to the security of a free state). The authors demonstrate that the militia envisioned by the framers of the Bill of Rights in 1789 has long since disappeared from the American scene, leaving no lineal descendants. The constitutional right to bear arms, Uviller and Merkel conclude, has evaporated along with the universal militia of the eighteenth century.
Using records from the founding era, Uviller and Merkel explain that the Second Amendment was motivated by a deep fear of standing armies. To guard against the debilitating effects of militarism, and against the ultimate danger of a would-be Caesar at the head of a great professional army, the founders sought to guarantee the existence of well-trained, self-armed, locally commanded citizen militia, in which service was compulsory. By its very existence, this militia would obviate the need for a large and dangerous regular army. But as Uviller and Merkel describe the gradual rise of the United States Army and the National Guard over the last two hundred years, they highlight the nation's abandonment of the militia ideal so dear to the framers. The authors discuss issues of constitutional interpretation in light of radically changed social circumstances and contrast their position with the arguments of a diverse group of constitutional scholars including Sanford Levinson, Carl Bogus, William Van Alstyne, and Akhil Reed Amar.
Espousing a centrist position in the polarized arena of Second Amendment interpretation, this book will appeal to those wanting to know more about the amendment's relevance to the issue of gun control, as well as to those interested in the constitutional and political context of America's military history.
Some essays consider the role of “swing” Justices Sandra Day O’Connor and Anthony Kennedy within a Court that divides 5–4 more than any other group of Justices in the nation’s history. Others examine the political reaction to and legal context of the Court’s Lawrence v. Texas decision declaring a Texas law criminalizing homosexual sodomy unconstitutional. Contributors analyze the Court’s rulings on affirmative action and reassess its commitment to states’ rights. Considering the Court’s practices, one advocate explores the use and utility of amicus curiae, or “friend of the court” briefs, while another reflects on indications of an increased openness by the Court to public scrutiny. Two advocates who argued cases before the Court—one related to hate speech and the other to a “three strikes and you’re out” criminal statute—offer vivid accounts of their experiences. Intended for general readers, A Year at the Supreme Court is for all those who want to understand the Rehnquist Court and its momentous 2002–03 term.
Contributors
Erwin Chemerinsky
Neal Devins
Davison M. Douglas
David J. Garrow
Dahlia Lithwick
Tony Mauro
Carter Phillips
Ramesh Ponnuru
Jeffrey Rosen
David G. Savage
Rodney A. Smolla
Stuart Taylor Jr.
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