constitutional theory e duke books scholarly collection

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Constitutional Theory

Author : Carl Schmitt
ISBN : 0822390582
Genre : Law
File Size : 38. 97 MB
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Carl Schmitt’s magnum opus, Constitutional Theory, was originally published in 1928 and has been in print in German ever since. This volume makes Schmitt’s masterpiece of comparative constitutionalism available to English-language readers for the first time. Schmitt is considered by many to be one of the most original—and, because of his collaboration with the Nazi party, controversial—political thinkers of the twentieth century. In Constitutional Theory, Schmitt provides a highly distinctive and provocative interpretation of the Weimar Constitution. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people. In addition to being subject to long-standing debate among legal and political theorists in Western Europe and the United States, this theory of constitution-making as decision has profoundly influenced constitutional theorists and designers in Asia, Latin America, and Eastern Europe. Constitutional Theory is a significant departure from Schmitt’s more polemical Weimar-era works not just in terms of its moderate tone. Through a comparative history of constitutional government in Europe and the United States, Schmitt develops an understanding of liberal constitutionalism that makes room for a strong, independent state. This edition includes an introduction by Jeffrey Seitzer and Christopher Thornhill outlining the cultural, intellectual, and political contexts in which Schmitt wrote Constitutional Theory; they point out what is distinctive about the work, examine its reception in the postwar era, and consider its larger theoretical ramifications. This volume also contains extensive editorial notes and a translation of the Weimar Constitution.

Constitutional Revolutions

Author : Robert Justin Lipkin
ISBN : 9780822380511
Genre : Law
File Size : 73. 69 MB
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In Constitutional Revolutions Robert Justin Lipkin radically rethinks modern constitutional jurisprudence, challenging the traditional view of constitutional change as solely an extension or transformation of prior law. He instead argues for the idea of “constitutional revolutions”—landmark decisions that are revolutionary because they are not generated from legal precedent and because they occur when the Constitution fails to provide effective procedures for accommodating a needed change. According to Lipkin, U.S. constitutional law is driven by these revolutionary judgments that translate political and cultural attitudes into formal judicial decisions. Drawing on ethical theory, philosophy of science, and constitutional theory, Lipkin provides a progressive, postmodern, and pragmatic theory of constitutional law that justifies the critical role played by the judiciary in American democracy. Judicial review, he claims, operates as a mechanism to allow “second thought,” or principled reflection, on the values of the wider culture. Without this revolutionary function, American democracy would be left without an effective institutional means to formulate the community’s considered judgments about good government and individual rights. Although judicial review is not the only forum for protecting this dimension of constitutional democracy, Lipkin maintains that we would be wise not to abandon judicial review unless a viable alternative emerges. Judges, lawyers, law professors, and constitutional scholars will find this book a valuable resource.

Constitutional Failure

Author : Ellen Kennedy
ISBN : 9780822385578
Genre : Law
File Size : 62. 73 MB
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Constitutional Failure is a major contribution to studies of the German political philosopher Carl Schmitt (1888–1985), the Weimar Republic, and the relationship of constitutionalism, political economy, and democracy. An internationally renowned scholar of Weimar legal theory, Ellen Kennedy brought Schmitt’s neglected work to the attention of English-speaking readers with her highly regarded translations of his work and studies of its place in twentieth-century political theory. In this eagerly awaited book, she tracks Schmitt’s contribution to the canon of Western political philosophy during its most difficult and dangerous moment—the time of Weimar Germany and the Third Reich—demonstrating the centrality of his thought to understandings of the modern constitutional state and its precarious economic and social foundations. Kennedy reveals how Schmitt’s argument for a strong but neutral state supported the maximization of market freedom at the cost of the political constitution. She argues that the major fault lines of Weimar liberalism—emergency powers, the courts as “defenders of the constitution,” mass mobilization of anti-liberal politics, ethnic-identity politics, a culture of resentment and contested legitimacy—are not exceptions within the liberal-democratic orders of the West, but central to them. Contending that Schmitt’s thought remains vital today because liberal norms are inadequate to the political challenges facing constitutional systems as diverse as those of Eastern Europe and the United States, Kennedy develops a compelling, rigorous argument that unsettles many assumptions about liberalism, democracy, and dictatorship.

Neglected Policies

Author : Ira L. Strauber
ISBN : 9780822384267
Genre : Law
File Size : 68. 91 MB
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In Neglected Policies, Ira L. Strauber challenges scholars and critics of constitutional jurisprudence to think differently about the Constitution and its interpretation. He argues that important aspects of law, policies, and politics are neglected because legal formalisms, philosophical theories, the reasoning of litigators and judges, and even the role of the courts are too often taken for granted. Strauber advocates an alternative approach to thinking about the legal and moral abstractions ordinarily used in constitutional decision making. His approach, which he calls “agnostic skepticism,” interrogates all received jurisprudential notions, abandoning the search for “right answers” to legal questions. It demands that attention be paid to the context-specific, circumstantial social facts relevant to given controversies and requires a habit of mind at home with relativism. Strauber situates agnostic skepticism within contemporary legal thought, explaining how it draws upon sociological jurisprudence, legal realism, and critical legal studies. Through studies of cases involving pornography, adoption custody battles, flag burning, federalism, and environmental politics, he demonstrates how agnostic skepticism applies to constitutional issues. Strauber contends that training in skeptical critique will enable a new kind of civic education and culture—one in which citizens are increasingly tolerant of the ambiguities and contradictions inherent in the law and politics of a pluralistic society. Using insights from the social sciences to examine the ways constitutional cases are studied and taught, Neglected Policies will interest scholars of jurisprudence, political science, and the sociology of law.

Popular Sovereignty And The Crisis Of German Constitutional Law

Author : Peter C. Caldwell
ISBN : 0822319799
Genre : History
File Size : 64. 40 MB
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Popular Sovereignty and the Crisis of German Constitutional Law is a historical analysis of competing doctrines of constitutional law during the Weimar Republic. It chronicles the creation of a new constitutional jurisprudence both adequate to the needs of a modern welfare state and based on the principle of popular sovereignty. Peter C. Caldwell explores the legal nature of democracy as debated by Weimar’s political theorists and constitutional lawyers. Laying the groundwork for questions about constitutional law in today’s Federal Republic, this book draws clear and insightful distinctions between strands of positivist and anti-positivist legal thought, and examines their implications for legal and political theory. Caldwell makes accessible the rich literature in German constitutional thought of the Weimar period, most of which has been unavailable in English until now. On the liberal left, Hugo Preuss and Hans Kelsen defended a concept of democracy that made the constitution sovereign and, in a way, created the "Volk" through constitutional procedure. On the right, Carl Schmitt argued for a substantial notion of the "Volk" that could overrule constitutional procedure in a state of emergency. Rudolf Smend and Heinrich Triepel located in the constitution a set of inviolable values of the political community, while Hermann Heller saw in it a guarantee of substantial social equality. Drawing on the work of these major players from the 1920s, Caldwell reveals the various facets of the impassioned constitutional struggles that permeated German legal and political culture during the Weimar Republic.

Biocapital

Author : Kaushik Sunder Rajan
ISBN : 9780822388005
Genre : Business & Economics
File Size : 40. 33 MB
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Biocapital is a major theoretical contribution to science studies and political economy. Grounding his analysis in a multi-sited ethnography of genomic research and drug development marketplaces in the United States and India, Kaushik Sunder Rajan argues that contemporary biotechnologies such as genomics can only be understood in relation to the economic markets within which they emerge. Sunder Rajan conducted fieldwork in biotechnology labs and in small start-up companies in the United States (mostly in the San Francisco Bay area) and India (mainly in New Delhi, Hyderabad, and Bombay) over a five-year period spanning 1999 to 2004. He draws on his research with scientists, entrepreneurs, venture capitalists, and policymakers to compare drug development in the two countries, examining the practices and goals of research, the financing mechanisms, the relevant government regulations, and the hype and marketing surrounding promising new technologies. In the process, he illuminates the global flow of ideas, information, capital, and people connected to biotech initiatives. Sunder Rajan’s ethnography informs his theoretically sophisticated inquiry into how the contemporary world is shaped by the marriage of biotechnology and market forces, by what he calls technoscientific capitalism. Bringing Marxian theories of value into conversation with Foucaultian notions of biopolitics, he traces how the life sciences came to be significant producers of both economic and epistemic value in the late twentieth century and early twenty-first.

Wrestling With Diversity

Author : Sanford Levinson
ISBN : 9780822385141
Genre : Law
File Size : 62. 23 MB
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“Diversity” has become a mantra within discussions of university admissions policies and many other arenas of American society. In the essays collected here, Sanford Levinson, a leading scholar of constitutional law and American government, wrestles with various notions of diversity. He begins by explaining why he finds the concept to be almost useless as a genuine guide to public policy. Discussing affirmative action in university admissions, including the now famous University of Michigan Law School case, he argues both that there may be good reasons to use preferences—including race and ethnicity—and that these reasons have relatively little to do with any cogently developed theory of diversity. Distinguished by Levinson’s characteristic open-mindedness and willingness to tease out the full implications of various claims, each of these nine essays, written over the past decade, develops a case study focusing on a particular aspect of public life in a richly diverse, and sometimes bitterly divided, society. Although most discussions of diversity have focused on race and ethnicity, Levinson is particularly interested in religious diversity and its implications. Why, he asks, do arguments for racial and ethnic diversity not also counsel a concern to achieve religious diversity within a student body? He considers the propriety of judges drawing on their religious views in making legal decisions and the kinds of questions Senators should feel free to ask nominees to the federal judiciary who have proclaimed the importance of their religion in structuring their own lives. In exploring the sense in which Sandy Koufax can be said to be a “Jewish baseball player,” he engages in broad reflections on professional identity. He asks whether it is desirable, or even possible, to subordinate merely "personal" aspects of one’s identity—religion, political viewpoints, gender—to the impersonal demands of the professional role. Wrestling with Diversity is a powerful interrogation of the assumptions and contradictions underlying public life in a multicultural world.

The Constitutional Logic Of Affirmative Action

Author : Ronald J. Fiscus
ISBN : 0822317702
Genre : Law
File Size : 23. 36 MB
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Few issues are as mired in rhetoric and controversy as affirmative action. This is certainly no less true now as when Ronald J. Fiscus’s The Constitutional Logic of Affirmative Action was first published in 1992. The controversy has, perhaps, become more charged over the past few years. With this compelling and rigorously reasoned argument for a constitutional rationale of affirmative action, Fiscus clarifies the moral and legal ramifications of this complex subject and presents an important view in the context of the ongoing debate. Beginning with a distinction drawn between principles of compensatory and distributive justice, Fiscus argues that the former, although often the basis for judgments made in individual discrimination cases, cannot sufficiently justify broad programs of affirmative action. Only a theory of distributive justice, one that assumes minorities have a right to what they would have gained proportionally in a nonracist society, can persuasively provide that justification. On this basis, the author argues in favor of proportional racial quotas—and challenges the charge of “reverse discrimination” raised in protest in the name of the “innocent victims” of affirmative action—as an action necessary to approach the goals of fairness and equality. The Constitutional Logic of Affirmative Action focuses on Supreme Court affirmative action rulings from Bakke (1976) to Croson (1989) and includes an epilogue by editor Stephen L. Wasby that considers developments through 1995. General readers concerned with racial justice, affirmative action, and public policy, as well as legal specialists and constitutional scholars will find Fiscus’s argument passionate, balanced, and persuasive.

Cultural Analysis Cultural Studies And The Law

Author : Austin Sarat
ISBN : 9780822384755
Genre : Law
File Size : 69. 8 MB
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Cultural Analysis, Cultural Studies, and the Law is a field-defining collection of work at the intersection of law, cultural analysis and cultural studies. Over the past few decades the marked turn toward claims and policy arguments based on cultural identity—such as ethnicity, race, or religion—has pointed up the urgent need for legal studies to engage cultural critiques. Exploration of legal issues through cultural analyses provides a rich supplement to other approaches—including legal realism, law and economics, and law and society. As Austin Sarat and Jonathan Simon demonstrate, scholars of the law have begun to mine the humanities for new theoretical tools and kinds of knowledge. Crucial to this effort is cultural studies, with its central focus on the relationship between knowledge and power. Drawing on legal scholarship, literary criticism, psychoanalytic theory, and anthropology, the essays collected here exemplify the contributions cultural analysis and cultural studies make to interdisciplinary legal study. Some of these broad-ranging pieces describe particular approaches to the cultural study of the law, while others look at specific moments where the law and culture intersect. Contributors confront the deep connections between law, social science, and post-World War II American liberalism; examine the traffic between legal and late-nineteenth- and early-twentieth-century scientific discourses; and investigate, through a focus on recovered memory, the ways psychotherapy is absorbed into the law. The essayists also explore specific moments where the law is forced to comprehend the world beyond its boundaries, illuminating its dependence on a series of unacknowledged aesthetic, psychological, and cultural assumptions—as in Aldolph Eichmann’s 1957 trial, hiv-related cases, and the U.S. Supreme Court’s recent efforts to define the role of race in the construction of constitutionally adequate voting districts. Contributors. Paul Berman, Peter Brooks, Wai Chee Dimock, Anthony Farley, Shoshanna Felman, Carol Greenhouse, Paul Kahn, Naomi Mezey, Tobey Miller, Austin Sarat, Jonathan Simon, Alison Young

Legality And Legitimacy

Author : Carl Schmitt
ISBN : 9780822385769
Genre : Law
File Size : 74. 44 MB
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Carl Schmitt ranks among the most original and controversial political thinkers of the twentieth century. His incisive criticisms of Enlightenment political thought and liberal political practice remain as shocking and significant today as when they first appeared in Weimar Germany. Unavailable in English until now, Legality and Legitimacy was composed in 1932, in the midst of the crisis that would lead to the collapse of the Weimar Republic and only a matter of months before Schmitt’s collaboration with the Nazis. In this important work, Schmitt questions the political viability of liberal constitutionalism, parliamentary government, and the rule of law. Liberal governments, he argues, cannot respond effectively to challenges by radical groups like the Nazis or Communists. Only a presidential regime subject to few, if any, practical limitations can ensure domestic security in a highly pluralistic society. Legality and Legitimacy is sure to provide a compelling reference point in contemporary debates over the challenges facing constitutional democracies today. In addition to Jeffrey Seitzer’s translation of the 1932 text itself, this volume contains his translation of Schmitt’s 1958 commentary on the work, extensive explanatory notes, and an appendix including selected articles of the Weimar constitution. John P. McCormick’s introduction places Legality and Legitimacy in its historical context, clarifies some of the intricacies of the argument, and ultimately contests Schmitt’s claims regarding the inherent weakness of parliamentarism, constitutionalism, and the rule of law.

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