The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

Author: David Rudenstine

Publisher: Oxford University Press

ISBN: 0199381496

Category: Law

Page: 240

View: 2443

In October 1948-one year after the creation of the U.S. Air Force as a separate military branch-a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch. David Rudenstine's The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.
Posted in Law

The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

Author: David Rudenstine

Publisher: Oxford University Press

ISBN: 0199381488

Category: Military law

Page: 344

View: 7492

In October 1948-one year after the creation of the U.S. Air Force as a separate military branch-a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch. David Rudenstine's The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.
Posted in Military law

The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

Author: David Rudenstine

Publisher: Oxford University Press

ISBN: 019938150X

Category: Law

Page: 240

View: 9228

In October 1948-one year after the creation of the U.S. Air Force as a separate military branch-a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch. David Rudenstine's The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.
Posted in Law

Not a Suicide Pact

The Constitution in a Time of National Emergency

Author: Richard A. Posner

Publisher: Oxford University Press

ISBN: 0195304276

Category: Political Science

Page: 171

View: 6785

A cogent and elegant response to protests against measures taken by the Bush administration since 9/11 is offered in this exploration of how personal liberty must be balanced with public safety in the face of grave national danger.
Posted in Political Science

The Cambridge Companion to the United States Constitution

Author: Karen Orren,John Compton

Publisher: Cambridge University Press

ISBN: 1107094666

Category: Law

Page: 490

View: 7125

Offers an accessible, interdisciplinary, and historically informed introduction to the study of American constitutionalism.
Posted in Law

The Future of Violence - Robots and Germs, Hackers and Drones

Confronting the New Age of Threat

Author: Benjamin Wittes,Gabriella Blum

Publisher: Amberley Publishing Limited

ISBN: 1445655942

Category: History

Page: 336

View: 7615

The terrifying new role of technology in a world at war
Posted in History

The Court and the World

American Law and the New Global Realities

Author: Stephen Breyer

Publisher: Vintage

ISBN: 1101912073

Category: Law

Page: 400

View: 6881

"In this original, far-reaching, and timely book, Justice Stephen Breyer examines the work of the Supreme Court of the United States in an increasingly interconnected world, a world in which all sorts of activity, both public and private--from the conduct of national security policy to the conduct of international trade--obliges the Court to understand and consider circumstances beyond America's borders. It is a world of instant communications, lightning-fast commerce, and shared problems (like public health threats and environmental degradation), and it is one in which the lives of Americans are routinely linked ever more pervasively to those of people in foreign lands. Indeed, at a moment when anyone may engage in direct transactions internationally for services previously bought and sold only locally (lodging, for instance, through online sites), it has become clear that, even in ordinary matters, judicial awareness can no longer stop at the water's edge. To trace how foreign considerations have come to inform the thinking of the Court, Justice Breyer begins with that area of the law in which they have always figured prominently: national security in its constitutional dimension--how should the Court balance this imperative with others, chiefly the protection of basic liberties, in its review of presidential and congressional actions? He goes on to show that as the world has grown steadily "smaller," the Court's horizons have inevitably expanded: it has been obliged to consider a great many more matters that now cross borders. What is the geographical reach of an American statute concerning, say, securities fraud, antitrust violations, or copyright protections? And in deciding such matters, can the Court interpret American laws so that they might work more efficiently with similar laws in other nations? While Americans must necessarily determine their own laws through democratic process, increasingly, the smooth operation of American law--and, by extension, the advancement of American interests and values--depends on its working in harmony with that of other jurisdictions. Justice Breyer describes how the aim of cultivating such harmony, as well as the expansion of the rule of law overall, with its attendant benefits, has drawn American jurists into the relatively new role of "constitutional diplomats," a little remarked but increasingly important job for them in this fast-changing world."--Publisher's description.
Posted in Law

Constitutional Personae

Author: Cass R. Sunstein

Publisher: Oxford University Press, USA

ISBN: 0190222670

Category: Constitutional law

Page: 192

View: 8141

"Since America's founding, hundreds of U.S. Supreme Court Justices have issued a vast number of decisions on a staggeringly wide variety of subjects. Yet as the eminent legal scholar, Cass R. Sunstein shows, constitutional law is dominated by a mere quartet of character types, regardless of ideology: the hero, the soldier, the minimalist, and the mute."--
Posted in Constitutional law

On War and Democracy

Author: Christopher Kutz

Publisher: Princeton University Press

ISBN: 1400873932

Category: Political Science

Page: 344

View: 5105

On War and Democracy provides a richly nuanced examination of the moral justifications democracies often invoke to wage war. In this compelling and provocative book, Christopher Kutz argues that democratic principles can be both fertile and toxic ground for the project of limiting war's violence. Only by learning to view war as limited by our democratic values—rather than as a tool for promoting them—can we hope to arrest the slide toward the borderless, seemingly endless democratic "holy wars" and campaigns of remote killings we are witnessing today, and to stop permanently the use of torture and secret law. Kutz shows how our democratic values, understood incautiously and incorrectly, can actually undermine the goal of limiting war. He helps us better understand why we are tempted to believe that collective violence in the name of politics can be legitimate when individual violence is not. In doing so, he offers a bold new account of democratic agency that acknowledges the need for national defense and the promotion of liberty abroad while limiting the temptations of military intervention. Kutz demonstrates why we must address concerns about the means of waging war—including remote war and surveillance—and why we must create institutions to safeguard some nondemocratic values, such as dignity and martial honor, from the threat of democratic politics. On War and Democracy reveals why understanding democracy in terms of political agency, not institutional process, is crucial to limiting when and how democracies use violence.
Posted in Political Science

Judicial Review of National Security

Author: David Scharia

Publisher: Oxford University Press, USA

ISBN: 0199393362

Category: Law

Page: 278

View: 8020

Here, David Scharia explains how the Supreme Court of Israel developed unconventional judicial review tools and practices that allowed it to provide judicial guidance to the Executive in real-time. In this book, he argues that courts could play a much more dominant role in reviewing national security, and demonstrates the importance of intensive real-time inter-branch dialogue with the Executive, as a tool used by the Israeli Court to provide such review.
Posted in Law

Commitment and Cooperation on High Courts

A Cross-Country Examination of Institutional Constraints on Judges

Author: Benjamin Alarie,Andrew J. Green

Publisher: Oxford University Press

ISBN: 0190466405

Category: Law

Page: 200

View: 8376

Judicial decision-making may ideally be impartial, but in reality it is influenced by many different factors, including institutional context, ideological commitment, fellow justices on a panel, and personal preference. Empirical literature in this area increasingly analyzes this complex collection of factors in isolation, when a larger sample size of comparative institutional contexts can help assess the impact of the procedures, norms, and rules on key institutional decisions, such as how appeals are decided. Four basic institutional questions from a comparative perspective help address these studies regardless of institutional context or government framework. Who decides, or how is a justice appointed? How does an appeal reach the court; what processes occur? Who is before the court, or how do the characteristics of the litigants and third parties affect judicial decision-making? How does the court decide the appeal, or what institutional norms and strategic behaviors do the judges perform to obtain their preferred outcome? This book explains how the answers to these institutional questions largely determine the influence of political preferences of individual judges and the degree of cooperation among judges at a given point in time. The authors apply these four fundamental institutional questions to empirical work on the Supreme Courts of the US, UK, Canada, India, and the High Court of Australia. The ultimate purpose of this book is to promote a deeper understanding of how institutional differences affect judicial decision-making, using empirical studies of supreme courts in countries with similar basic structures but with sufficient differences to enable meaningful comparison.
Posted in Law

The Imperial Presidency

Author: Arthur Meier Schlesinger

Publisher: Houghton Mifflin Harcourt

ISBN: 9780618420018

Category: History

Page: 589

View: 866

The presidential historian charts the progression of American power from George Washington to George W. Bush, revealing the exercise of power through the office as it has developed into an "imperial" seat of authority, in an updated edition of the classic history. Reprint.
Posted in History

The Day the Presses Stopped

A History of the Pentagon Papers Case

Author: David Rudenstine

Publisher: Univ of California Press

ISBN: 9780520213821

Category: History

Page: 416

View: 979

Publication of the Pentagon reports led the Nixon administration to sue the Times for a prior restraint, unleashing a firestorm of publicity and legal wrangling. A mere fifteen days later the Supreme Court freed the Times and the Washington Post, which had also secured a copy of the documents, to continue publishing their Pentagon Papers series.
Posted in History

The Great Chief Justice

John Marshall and the Rule of Law

Author: Charles F. Hobson

Publisher: N.A

ISBN: N.A

Category: Biography & Autobiography

Page: 256

View: 800

"John Marshall remains one of the towering figures in the landscape of American law. From the Revolution to the age of Jackson, he played a critical role in defining the "province of the judiciary" and the constitutional limits of legislative action. In this masterly study, Charles Hobson clarifies the coherence and thrust of Marshall's jurisprudence while keeping in sight the man as well as the jurist." "Hobson argues that contrary to his critics, Marshall was no ideologue intent upon appropriating the lawmaking powers of Congress. Rather, he was deeply committed to a principled jurisprudence that was based on a steadfast devotion to a "science of law" richly steeped in the common law tradition. As Hobson shows, such jurisprudence governed every aspect of Marshall's legal philosophy and court opinions, including his understanding of judicial review." "The chief justice, Hobson contends, did not invent judicial review (as many have claimed) but consolidated its practice by adapting common law methods to the needs of a new nation. In practice, his use of judicial review was restrained, employed almost exclusively against acts of the state legislatures. Ultimately, he wielded judicial review to prevent the states from undermining the power of a national government still struggling to establish sovereignty at home and respect abroad."--BOOK JACKET.Title Summary field provided by Blackwell North America, Inc. All Rights Reserved
Posted in Biography & Autobiography

Nothing to Hide

The False Tradeoff Between Privacy and Security

Author: Daniel J. Solove

Publisher: Yale University Press

ISBN: 0300177259

Category: Law

Page: 245

View: 5997

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this important book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so. The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. Why can't we have both? In this concise and accessible book, Solove exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy"--Jacket.
Posted in Law

Keeping Faith with the Constitution

Author: Goodwin Liu,Pamela S. Karlan,Christopher H. Schroeder

Publisher: Oxford University Press

ISBN: 9780199752836

Category: Political Science

Page: 272

View: 1203

Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.
Posted in Political Science

How a Pro Se Won Justice

An Inside Look at an Educator's Stunning Civil Rights-employment Victory Against the Chicago Board of Education in the US Court of Appeals for the Sev

Author: Joyce Hutchens

Publisher: Createspace Independent Publishing Platform

ISBN: 9781530021543

Category:

Page: 316

View: 481

"A veteran educator and successful businesswoman, Joyce Hutchens valiantly fights the system after her principal unustly disciplines her, and later, in violation of federal anti-discrimination laws, she is laid off from her administrative position"--Back cover.
Posted in

Dreams from Our Founding Fathers

First Principles in the Age of Obama

Author: Ron DeSantis

Publisher: High-Pitched Hum Publishing

ISBN: 9781934666807

Category: History

Page: 364

View: 461

Posted in History

International Law in the U.S. Supreme Court

Author: David L. Sloss,Michael D. Ramsey,William S. Dodge

Publisher: Cambridge University Press

ISBN: 1139497863

Category: Law

Page: N.A

View: 4671

From its earliest decisions in the 1790s, the US Supreme Court has used international law to help resolve major legal controversies. This book presents a comprehensive account of the Supreme Court's use of international law from its inception to the present day. Addressing treaties, the direct application of customary international law and the use of international law as an interpretive tool, this book examines all the cases or lines of cases in which international law has played a material role, showing how the Court's treatment of international law both changed and remained consistent over the period. Although there was substantial continuity in the Supreme Court's international law doctrine through the end of the nineteenth century, the past century has been a time of tremendous doctrinal change. Few aspects of the Court's international law doctrine remain the same in the twenty-first century as they were two hundred years ago.
Posted in Law

The Wyoming State Constitution

Author: Robert B. Keiter,Tim Newcomb

Publisher: Oxford University Press on Demand

ISBN: 019977904X

Category: Law

Page: 326

View: 7181

In The Wyoming State Constitution, Robert B. Keiter and Tim Newcomb provide a comprehensive guide to Wyoming's colorful constitutional history. The Wyoming State Constitution provides an outstanding analysis of the state's governing charter, including an in-depth, section-by-section analysis of the entire constitution, detailing important changes that have been made since its initial drafting. This treatment, which includes a list of cases, index, and bibliography, makes this guide indispensable for students, scholars, and practitioners of Wyoming's constitution. Previously published by Greenwood, this title has been brought back in to circulation by Oxford University Press with new verve. Re-printed with standardization of content organization in order to facilitate research across the series, this title, as with all titles in the series, is set to join the dynamic revision cycle of The Oxford Commentaries on the State Constitutions of the United States. The Oxford Commentaries on the State Constitutions of the United States is an important series that reflects a renewed international interest in constitutional history and provides expert insight into each of the 50 state constitutions. Each volume in this innovative series contains a historical overview of the state's constitutional development, a section-by-section analysis of its current constitution, and a comprehensive guide to further research. Under the expert editorship of Professor G. Alan Tarr, Director of the Center on State Constitutional Studies at Rutgers University, this series provides essential reference tools for understanding state constitutional law. Books in the series can be purchased individually or as part of a complete set, giving readers unmatched access to these important political documents.
Posted in Law