making our democracy work a judge s view

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Making Our Democracy Work

Author : Stephen G. Breyer
ISBN : 9780307390837
Genre : Law
File Size : 71. 65 MB
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A Supreme Court justice outlines an accessible profile of the legislative branch's duties that explains its responsibility to safeguard the public while ensuring the cooperation of other government branches, sharing the stories behind key historical decisions. By the author of Active Liberty. Reprint. A best-selling book.

The Court And The World

Author : Stephen Breyer
ISBN : 9781101912072
Genre : Law
File Size : 53. 96 MB
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"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.

America S Supreme Court

Author : Stephen Breyer
ISBN : 9780199606733
Genre : Law
File Size : 33. 47 MB
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"Published in the US under the title Making our democracy work"--T.p. verso.

Economic Reasoning And Judicial Review

Author : Stephen G. Breyer
ISBN : 0844771759
Genre : Political Science
File Size : 48. 2 MB
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The judicial review of regulatory agencies' decisions, and of statutory enactments with important economic content, presents unique and persistent problems. These decisions are often technical and complex, and the judicial review is usually performed by non-specialists who often seek to provide clear rules and predictability, not case-by-case economic balancing of their own. Sound economic policy requires a balancing of both costs and benefits and demand and supply. In Economic Reasoning and Judicial Review (AEI Press, March 2004)--an essay first presented in December 2003 as the AEI-Brookings Joint Center for Regulatory Studies' 2003 Distinguished Lecture--Stephen G. Breyer, Associate Justice of the United States Supreme Court, discusses these dilemmas in the context of recent Supreme Court decisions and offers suggestions for addressing them. In order to bring economic reasoning to bear in legal fields, such as antitrust law, intellectual property law, and economic regulation, Justice Breyer recommends the following: The law must take into greater consideration the underlying human purposes of the law, rather than simply favor strict legal categories. Courts should consider using independent experts for economic reasoning in technical areas rather than sending judges to economic seminars. These experts should understand the role that administrative considerations, such as the need for rules, play in the law. Given the law's reluctance to rely upon novel approaches, institutions outside the judiciary should debate and adopt economic methods for the courts to model. The legal process, Justice Breyer argues, "is too important to be left simply to the legal specialists, to the lawyers, or even to the judges." Those with basic economic or regulatory policymaking expertise need to participate in the judicial process. Whether serving as experts in individual cases or informed court watchers and critics, these experts can help lawyers and judges understand the tools of analysis and encourage their use. Justice Breyer has long been a leader in the quest to build a rational consensus on the appropriate role of government intervention in a market-based economy. As counsel to the Senate Judiciary Committee, he was one of the chief architects of airline deregulation. As a Harvard University law professor and a Supreme Court Justice, he has made seminal contributions to the understanding of social and economic regulation, copyright law, and administrative law. Justice Breyer is the author of Regulation and Its Reform (Harvard, 1992) and Breaking the Vicious Circle: Toward Effective Risk Regulation (Harvard, 1993).

Active Liberty

Author : Stephen Breyer
ISBN : 0307424618
Genre : Political Science
File Size : 21. 28 MB
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A brilliant new approach to the Constitution and courts of the United States by Supreme Court Justice Stephen Breyer.For Justice Breyer, the Constitution’s primary role is to preserve and encourage what he calls “active liberty”: citizen participation in shaping government and its laws. As this book argues, promoting active liberty requires judicial modesty and deference to Congress; it also means recognizing the changing needs and demands of the populace. Indeed, the Constitution’s lasting brilliance is that its principles may be adapted to cope with unanticipated situations, and Breyer makes a powerful case against treating it as a static guide intended for a world that is dead and gone. Using contemporary examples from federalism to privacy to affirmative action, this is a vital contribution to the ongoing debate over the role and power of our courts. From the Trade Paperback edition.

Real Democracy

Author : Frank M. Bryan
ISBN : 0226077985
Genre : Political Science
File Size : 58. 57 MB
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Relying on an astounding collection of more than three decades of firsthand research, Frank M. Bryan examines one of the purest forms of American democracy, the New England town meeting. At these meetings, usually held once a year, all eligible citizens of the town may become legislators; they meet in face-to-face assemblies, debate the issues on the agenda, and vote on them. And although these meetings are natural laboratories for democracy, very few scholars have systematically investigated them. A nationally recognized expert on this topic, Bryan has now done just that. Studying 1,500 town meetings in his home state of Vermont, he and his students recorded a staggering amount of data about them—238,603 acts of participation by 63,140 citizens in 210 different towns. Drawing on this evidence as well as on evocative "witness" accounts—from casual observers to no lesser a light than Aleksandr Solzhenitsyn—Bryan paints a vivid picture of how real democracy works. Among the many fascinating questions he explores: why attendance varies sharply with town size, how citizens resolve conflicts in open forums, and how men and women behave differently in town meetings. In the end, Bryan interprets this brand of local government to find evidence for its considerable staying power as the most authentic and meaningful form of direct democracy. Giving us a rare glimpse into how democracy works in the real world, Bryan presents here an unorthodox and definitive book on this most cherished of American institutions.

A Matter Of Interpretation Federal Courts And The Law

Author : Antonin Scalia
ISBN : 9781400882953
Genre : Law
File Size : 45. 82 MB
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We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim—"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal—good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative. In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the “strict constructionism” that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly “smuggle” in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals. This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia’s ideas about judicial interpretation from varying standpoints. In the spirit of debate, Justice Scalia responds to these critics. Featuring a new foreword that discusses Scalia’s impact, jurisprudence, and legacy, this witty and trenchant exchange illuminates the brilliance of one of the most influential legal minds of our time.

We The Jury

Author : Jeffrey B. Abramson
ISBN : 0674004302
Genre : Law
File Size : 23. 45 MB
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This magisterial book explores fascinating cases from American history to show how juries remain the heart of our system of criminal justice - and an essential element of our democracy. No other institution of government rivals the jury in placing power so directly in the hands of citizens. Jeffrey Abramson draws upon his own background as both a lawyer and a political theorist to capture the full democratic drama that is the jury. We, the Jury is a rare work of scholarship that brings the history of the jury alive and shows the origins of many of today's dilemmas surrounding juries and justice.

The Collapse Of American Criminal Justice

Author : William J. Stuntz
ISBN : 9780674051751
Genre : Law
File Size : 74. 35 MB
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Rule of law has vanished in America’s criminal justice system. Prosecutors decide whom to punish; most accused never face a jury; policing is inconsistent; plea bargaining is rampant; and draconian sentencing fills prisons with mostly minority defendants. A leading criminal law scholar looks to history for the roots of these problems—and solutions.

Law Pragmatism And Democracy

Author : Richard A. Posner
ISBN : 0674042298
Genre : Law
File Size : 23. 56 MB
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Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making. Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense.

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