constitutional theory e duke books scholarly collection

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Constitutional Theory

Author : Carl Schmitt
ISBN : 9780822340119
Genre : Law
File Size : 75. 96 MB
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This volume makes Schmitt's provocative work on comparative constitutionalism available in English for the first time since it was published in 1928 in Germany.

Constitutional Revolutions

Author : Robert Justin Lipkin
ISBN : 9780822380511
Genre : Law
File Size : 66. 10 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 : 77. 54 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.

The Constitutional Logic Of Affirmative Action

Author : Ronald J. Fiscus
ISBN : 0822317702
Genre : Law
File Size : 68. 15 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.

Popular Sovereignty And The Crisis Of German Constitutional Law

Author : Peter C. Caldwell
ISBN : 0822319799
Genre : History
File Size : 89. 24 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 : 68. 67 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.

Healthy Urban Environments

Author : Cecily Maller
ISBN : 9781317217237
Genre : Business & Economics
File Size : 68. 79 MB
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Set in the ‘human–environment’ interaction space, this book applies new theoretical and practical insights to understanding what makes healthy urban environments. It stems from recognition that the world is rapidly urbanising and the international concern with how to create healthy settings and liveable cities in the context of a rapidly changing planet. A key argument is that usual attempts to make healthy cities are limited by human-centrism and bifurcated, western thinking about cities, health and nature. Drawing on the innovative ‘more-than-human’ scholarship from a range of disciplines, it presents a synthesis of the main contributions, and how they can be used to rethink what healthy urban environments are, and who they are for. In particular, the book turns its attention to urban biodiversity and the many non-human species that live in, make and share cities with humans. The book will be of interest to scholars and students in human geography, health sociology, environmental humanities, public health, health promotion, planning and urban design, as well as policymakers and professionals working in these fields.

Legality And Legitimacy

Author : Carl Schmitt
ISBN : 9780822385769
Genre : Law
File Size : 38. 51 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.

Cultural Analysis Cultural Studies And The Law

Author : Austin Sarat
ISBN : 0822331438
Genre : Law
File Size : 59. 58 MB
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DIVThis interdisciplinary collection demonstrates the purchase of cultural studies frameworks for thinking about legal questions beyond the reach of the Law & Economics framework./div

Pluralism

Author : William E. Connolly
ISBN : 9780822387084
Genre : Philosophy
File Size : 78. 90 MB
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Over the past two decades, the renowned political theorist William E. Connolly has developed a powerful theory of pluralism as the basis of a territorial politics. In this concise volume, Connolly launches a new defense of pluralism, contending that it has a renewed relevance in light of pressing global and national concerns, including the war in Iraq, the movement for a Palestinian state, and the fight for gay and lesbian rights. Connolly contends that deep, multidimensional pluralism is the best way to promote justice and inclusion without violence. He advocates a deep pluralism—in contrast to shallow, secular pluralism—that helps to create space for different groups to bring their religious faiths into the public realm. This form of deep pluralism extends far beyond faith, encompassing multiple dimensions of social and personal lives, including household organization and sexuality. Connolly looks at pluralism not only in light of faith but also in relation to evil, ethics, relativism, globalization, and sovereignty. In the process, he engages many writers and theorists—among them, Spinoza, William James, Henri Bergson, Marcel Proust, Gilles Deleuze, Giorgio Agamben, Talal Asad, Michael Hardt, and Antonio Negri. Pluralism is the first book in which Connolly explains the relationship between pluralism and the experience of time, and he offers readings of several films that address how time is understood, including Time Code, Far from Heaven, Waking Life, and The Maltese Falcon. In this necessary book Connolly brings a compelling, accessible philosophical critique together with his personal commitment to an inclusive political agenda to suggest how we might—and why we must—cultivate pluralism within both society and ourselves.

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