A systematic attempt to understand the rabbinic world through its approach to confronting uncertainty
In the history of halakhah, the treatment of uncertainty became one of the most complex fields of intense study. In his latest book, Moshe Halbertal focuses on examining the point of origin of the study of uncertainty in early rabbinic literature, including the Mishnah, Tosefta, and halakhic midrashim. Halbertal explores instructions concerning how to behave in situations of uncertainty ranging from matters of ritual purity, to lineage and marriage, to monetary law, and to the laws of forbidden foods. This examination of the rules of uncertainty introduced in early rabbinic literature reveals that these rules were not aimed at avoiding but rather at dwelling in the midst of uncertainty, thus rejecting the sectarian isolationism that sought to minimize a community’s experience of and friction with uncertainty.
Features:
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
Contrary to traditional theories of statutory interpretation, which ground statutes in the original legislative text or intent, legal scholar William Eskridge argues that statutory interpretation changes in response to new political alignments, new interpreters, and new ideologies. It does so, first of all, because it involves richer authoritative texts than does either common law or constitutional interpretation: statutes are often complex and have a detailed legislative history. Second, Congress can, and often does, rewrite statutes when it disagrees with their interpretations; and agencies and courts attend to current as well as historical congressional preferences when they interpret statutes. Third, since statutory interpretation is as much agency-centered as judge-centered and since agency executives see their creativity as more legitimate than judges see theirs, statutory interpretation in the modern regulatory state is particularly dynamic.
Eskridge also considers how different normative theories of jurisprudence—liberal, legal process, and antiliberal—inform debates about statutory interpretation. He explores what theory of statutory interpretation—if any—is required by the rule of law or by democratic theory. Finally, he provides an analytical and jurisprudential history of important debates on statutory interpretation.
For more than a millennium, fatwas have guided and shaped Muslim understandings of Islamic law. The whole world knows of Ayatollah Khomeini’s fatwa in the Salman Rushdie case, yet this key institution in Muslim society has not been the subject of a major examination until now.
Ranging in import from the routine to the revolutionary, and in form from one-line answers to short treatises, fatwas have served to reaffirm received wisdom, caution against error, and chart novel responses to changing circumstances. The interpreters, the muftis of Islam, have included the greatest independent scholars of the ages, heads of large state bureaucracies, and unassuming jurists in local districts. Their vital task, which continues today in published collections as well as on radio and television, is to strive to interpret God’s design for the Muslim community.
Islamic Legal Interpretation uses an approach unique in Islamic studies, a casebook of expert analyses of fatwas from a wide range of times and places. The editors’ first chapter sets forth the origins, classical diversity, and modern development of the fatwa, while the following chapters illustrate particular opinions and their contexts. The approach throughout is interdisciplinary, as historians, lawyers, language specialists, and social scientists address fatwas as fundamental sources on both Islamic legal thought and Islamic social history.
Despite being one of the most avowedly secular nations in the world, Japan may have more prison chaplains per inmate than any other country, the majority of whom are Buddhist priests. In this groundbreaking study of prison religion in East Asia, Adam Lyons introduces a form of chaplaincy rooted in the Buddhist concept of doctrinal admonition rather than Euro-American notions of spiritual care.
Based on archival research, fieldwork inside prisons, and interviews with chaplains, Karma and Punishment reveals another dimension of Buddhist modernism that developed as Japan’s religious organizations carved out a niche as defenders of society by fighting crime. Between 1868 and 2020, generations of clergy have been appointed to bring religious instruction to bear on a range of offenders, from illegal Christian heretics to Marxist political dissidents, war criminals, and death row inmates. The case of the prison chaplaincy shows that despite constitutional commitments to freedom of religion and separation of religion from state, statism remains an enduring feature of mainstream Japanese religious life in the contemporary era.
Pulling the rug out from debates about interpretation, The Language of Statutes joins together learning from law, linguistics, and cognitive science to illuminate the fundamental issues and problems in this highly contested area. Here, Lawrence M. Solan argues that statutory interpretation is alive, well, and not in need of the major overhaul that many have suggested. Rather, he 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.
Solan 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’re predisposed to absorb new situations into categories we have previously formed—but in the legislative and judicial realms this can present major difficulties. Solan provides an excellent 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.
A powerful argument for the essential role of morality in law, getting at the heart of key debates in public life.
What is law? And how does it relate to morality? It’s common to think that law and morality are different ways of regulating our lives. But Scott Hershovitz says that this is a mistake: law is a part of our moral lives. It’s a tool we use to adjust our moral relationships. The legal claims we advance in court, Hershovitz argues, are moral claims. And our legal conflicts are moral conflicts.
Law Is a Moral Practice supplies fresh answers to fundamental questions about the nature of law and helps us better appreciate why we disagree about law so deeply. Reviving a neglected tradition of legal thought most famously associated with Ronald Dworkin, Hershovitz engages with important legal and political controversies of our time, including recent debates about constitutional interpretation and the obligations of citizens and officials to obey the law.
Leavened by entertaining personal stories, guided by curiosity rather than ideology, moving beyond entrenched dichotomies like the opposition between positivism and natural law, Law Is a Moral Practice is a thought-provoking investigation of the philosophical issues behind real-world legal debates.
Originalism and living constitutionalism, so often understood to be diametrically opposing views of our nation’s founding document, are not in conflict—they are compatible. So argues Jack Balkin, one of the leading constitutional scholars of our time, in this long-awaited book. Step by step, Balkin gracefully outlines a constitutional theory that demonstrates why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And he shows how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.
By making firm rules but also deliberately incorporating flexible standards and abstract principles, the Constitution’s authors constructed a framework for politics on which later generations could build. Americans have taken up this task, producing institutions and doctrines that flesh out the Constitution’s text and principles. Balkin’s analysis offers a way past the angry polemics of our era, a deepened understanding of the Constitution that is at once originalist and living constitutionalist, and a vision that allows all Americans to reclaim the Constitution as their own.
In this remarkable collaboration, one of the nation's leading civil rights lawyers joins forces with one of the world's foremost cultural psychologists to put American constitutional law into an American cultural context. By close readings of key Supreme Court opinions, they show how storytelling tactics and deeply rooted mythic structures shape the Court's decisions about race, family law, and the death penalty.
Minding the Law explores crucial psychological processes involved in the work of lawyers and judges: deciding whether particular cases fit within a legal rule ("categorizing"), telling stories to justify one's claims or undercut those of an adversary ("narrative"), and tailoring one's language to be persuasive without appearing partisan ("rhetorics"). Because these processes are not unique to the law, courts' decisions cannot rest solely upon legal logic but must also depend vitally upon the underlying culture's storehouse of familiar tales of heroes and villains.
But a culture's stock of stories is not changeless.
Amsterdam and Bruner argue that culture itself is a dialectic constantly in progress, a conflict between the established canon and newly imagined "possible worlds." They illustrate the swings of this dialectic by a masterly analysis of the Supreme Court's race-discrimination decisions during the past century.
A passionate plea for heightened consciousness about the way law is practiced and made, Minding the Law will be welcomed by a new generation concerned with renewing law's commitment to a humane justice.
American law schools extol democracy but teach little about its most basic institution, the Congress. Interpreting statutes is lawyers’ most basic task, but law professors rarely focus on how statutes are made. This misguided pedagogy, says Victoria Nourse, undercuts the core of legal practice. It may even threaten the continued functioning of American democracy, as contempt for the legislature becomes entrenched in legal education and judicial opinions. Misreading Law, Misreading Democracy turns a spotlight on lawyers’ and judges’ pervasive ignorance about how Congress makes law.
Victoria Nourse not only offers a critique but proposes reforming the way lawyers learn how to interpret statutes by teaching legislative process. Statutes are legislative decisions, just as judicial opinions are decisions. Her approach, legislative decision theory, reverse-engineers the legislative process to simplify the task of finding Congress’s meanings when statutes are ambiguous. This theory revolutionizes how we understand legislative history—not as an attempt to produce some vague notion of legislative intent but as a surgical strike for the best evidence of democratic context.
Countering the academic view that the legislative process is irrational and unseemly, Nourse makes a forceful argument that lawyers must be educated about the basic procedures that define how Congress operates today. Lawmaking is a sequential process with political winners and losers. If lawyers and judges do not understand this, they may well embrace the meanings of those who opposed legislation rather than those who supported it, making legislative losers into judicial winners, and standing democracy on its head.
Although constitutional law is supposed to be fixed and enduring, its central narrative in the twentieth century has been one of radical reinterpretation--Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies such radical reinterpretation? How does it work doctrinally? What, if anything, structures it or limits it?
Jed Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly. He posits two different understandings of how constitutional rights would apply or not apply to particular legislation. One is that a right would be violated if certain laws were passed. The other is that a right would not be violated. He calls the former "Application Understandings" and the latter "No-Application Understandings." He finds that constitutional law has almost always adhered to all of the original Application Understandings, but where it has departed from history, as it did in the Brown decision, it has departed from No-Application Understandings. Specifically, the Fourteenth Amendment did not prohibit racial segregation, so Rubenfeld argues that the Supreme Court had no problem reinterpreting it to prohibit it. It was a No-Application Understanding.
This is a powerful argument that challenges current theories of constitutional interpretation from Bork to Dworkin. It rejects simplistic originalism, but restores historicity to constitutional theorizing.
Winner of the Julia Ward Howe Prize
“The gripping story of the most important environmental law case ever decided by the Supreme Court.”
—Scott Turow
“In the tradition of A Civil Action, this book makes a compelling story of the court fight that paved the way for regulating the emissions now overheating the planet. It offers a poignant reminder of how far we’ve come—and how far we still must go.”
—Bill McKibben, author of The End of Nature
On an unseasonably warm October morning, an idealistic young lawyer working on a shoestring budget for an environmental organization no one had heard of hand-delivered a petition to the Environmental Protection Agency, asking it to restrict greenhouse gas emissions from new cars. The Clean Air Act authorized the EPA to regulate “any air pollutant” thought to endanger public health. But could carbon dioxide really be considered a harmful pollutant? And even if the EPA had the authority to regulate emissions, could it be forced to do so?
The Rule of Five tells the dramatic story of how Joe Mendelson and the band of lawyers who joined him carried his case all the way to the Supreme Court. It reveals how accident, infighting, luck, superb lawyering, politics, and the arcane practices of the Supreme Court collided to produce a legal miracle. The final ruling in Massachusetts v. EPA, by a razor-thin 5–4 margin brilliantly crafted by Justice John Paul Stevens, paved the way to important environmental safeguards which the Trump administration fought hard to unravel and many now seek to expand.
“There’s no better book if you want to understand the past, present, and future of environmental litigation.”
—Elizabeth Kolbert, author of The Sixth Extinction
“A riveting story, beautifully told.”
—Foreign Affairs
“Wonderful…A master class in how the Supreme Court works and, more broadly, how major cases navigate through the legal system.”
—Science
Weiss’s new introduction provides an overview of Amidi’s jurisprudence that facilitates deeper comprehension of the challenging dialectic of the text. This edition includes an in-depth analysis of the nature of language and the ways in which it mediates the law, while shaping it at the same time. An updated index has been added.
Most new law is statutory law; that is, law enacted by legislators. An important question, therefore, is how should this law be interpreted by courts and agencies, especially when the text of a statute is not entirely clear. There is a great deal of scholarly literature on the rules and legal materials courts should use in interpreting statutes. This book takes a fresh approach by focusing instead on what judges should do once the legal materials fail to resolve the interpretive question. It challenges the common assumption that in such cases judges should exercise interstitial lawmaking power. Instead, it argues that--wherever one believes the interpretive inquiry has failed to resolve the statutory meaning--judges can and should use statutory default rules that are designed to maximize the satisfaction of enactable political preferences; that is, the political preferences of the polity that are shared among enough elected officials that they could and would be enacted into law if the issue were on the legislative agenda.
These default rules explain many recent high-profile cases, including the Guantánamo detainees case, the sentencing guidelines case, the decision denying the FDA authority to regulate cigarettes, and the case that refused to allow the attorney general to criminalize drugs used in physician-assisted suicide.
Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law examines the main characteristics of the legal thought of Imam Jaʿfar al-Ṣādiq, a preeminent religious scholar jurist of Medina in the first half of the second century of the Muslim calendar (mid-eighth century CE). Numerous works in different languages have appeared over the past half century to introduce this school of Islamic law and its history, legal theory, and substance in contexts of Shīʿī law.
While previous literature has focused on the current status of the school in its developed and expanded form, this book presents an intellectual history of how the school began. The Jaʿfarī school emerged within the general legal discourse of late-Umayyad and early- Abbasid periods, but was known to differ in certain approaches from the other main legal schools of this time. Namely, the Jaʿfarī school expanded the tools for legal interpretation generally and contracts specifically, to a degree unmatched by any of its counterparts in the Muslim legal tradition. In addition to sketching the origins of the school, the book examines Jaʿfar al-Ṣādiq’s interpretive approach through detailing his position on a number of specific questions, as well as the legal canons, presumptions, and other interpretive tools he adopted.
Conundrums, puzzles, and perversities: these are Leo Katz’s stock-in-trade, and in Why the Law Is So Perverse, he focuses on four fundamental features of our legal system, all of which seem to not make sense on some level and to demand explanation. First, legal decisions are essentially made in an either/or fashion—guilty or not guilty, liable or not liable, either it’s a contract or it’s not—but reality is rarely as clear-cut. Why aren’t there any in-between verdicts? Second, the law is full of loopholes. No one seems to like them, but somehow they cannot be made to disappear. Why? Third, legal systems are loath to punish certain kinds of highly immoral conduct while prosecuting other far less pernicious behaviors. What makes a villainy a felony? Finally, why does the law often prohibit what are sometimes called win-win transactions, such as organ sales or surrogacy contracts?
Katz asserts that these perversions arise out of a cluster of logical difficulties related to multicriterial decision making. The discovery of these difficulties dates back to Condorcet’s eighteenth-century exploration of voting rules, which marked the beginning of what we know today as social choice theory. Condorcet’s voting cycles, Arrow’s Theorem, Sen’s Libertarian Paradox—every seeming perversity of the law turns out to be the counterpart of one of the many voting paradoxes that lie at the heart of social choice. Katz’s lucid explanations and apt examples show why they resist any easy resolutions.
The New York Times Book Review called Katz’s first book “a fascinating romp through the philosophical side of the law.” Why the Law Is So Perverse is sure to provide its readers a similar experience.
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