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In follow-up studies, dozens of reviews, and even a book of essays evaluating his conclusions, Gerald Rosenberg’s critics—not to mention his supporters—have spent nearly two decades debating the arguments he first put forward in The Hollow Hope. With this substantially expanded second edition of his landmark work, Rosenberg himself steps back into the fray, responding to criticism and adding chapters on the same-sex marriage battle that ask anew whether courts can spur political and social reform. Finding that the answer is still a resounding no, Rosenberg reaffirms his powerful contention that it’s nearly impossible to generate significant reforms through litigation. The reason? American courts are ineffective and relatively weak—far from the uniquely powerful sources for change they’re often portrayed as. Rosenberg supports this claim by documenting the direct and secondary effects of key court decisions—particularly Brown v. Board of Education and Roe v. Wade. He reveals, for example, that Congress, the White House, and a determined civil rights movement did far more than Brown to advance desegregation, while pro-choice activists invested too much in Roe at the expense of political mobilization. Further illuminating these cases, as well as the ongoing fight for same-sex marriage rights, Rosenberg also marshals impressive evidence to overturn the common assumption that even unsuccessful litigation can advance a cause by raising its profile. Directly addressing its critics in a new conclusion, The Hollow Hope, Second Edition promises to reignite for a new generation the national debate it sparked seventeen years ago.
Both historically and in the present, the Supreme Court has largely been a failure In this devastating book, Erwin Chemerinsky—“one of the shining lights of legal academia” (The New York Times)—shows how, case by case, for over two centuries, the hallowed Court has been far more likely to uphold government abuses of power than to stop them. Drawing on a wealth of rulings, some famous, others little known, he reviews the Supreme Court’s historic failures in key areas, including the refusal to protect minorities, the upholding of gender discrimination, and the neglect of the Constitution in times of crisis, from World War I through 9/11. No one is better suited to make this case than Chemerinsky. He has studied, taught, and practiced constitutional law for thirty years and has argued before the Supreme Court. With passion and eloquence, Chemerinsky advocates reforms that could make the system work better, and he challenges us to think more critically about the nature of the Court and the fallible men and women who sit on it.
This documentary collection introduces readers to public debates on federal judicial authority in the late nineteenth and early twentieth centuries. The documents illustrate the contending and evolving views of lawyers, judges, legislators, legal scholars, and ordinary citizens on the judiciary's role in American constitutional government. The volume focuses on the debates sparked by legislative proposals to alter the organization, jurisdiction, and administration of the federal courts, as well as the tenure and authority of federal judges. Documents are drawn from a variety of governmental and nongovernmental sources, including congressional floor debates, testimony in congressional hearings, bar association meetings, public addresses, legal treatises, law reviews, and popular periodicals. The documents selected represent the most prevalent and influential ideas about the courts and are but an introduction to the breadth and depth of materials available on the history of the federal courts.This collection illuminates the many paths that were possible for the federal courts during a period of rapid social and economic change. The federal courts have not simply evolved in response to the needs of society—they are the product of political contests that reflect both competing economic and social interests and changing ideas about the role of the nation's courts in the American system of government. The speakers and writers in these documents believed that the stakes of these debates were high—that the organization, administration, and authority of the federal courts would have important consequences for core American governmental principles like separation of powers, political representation, and the rule of law.Between 1875 and 1939, the federal judiciary's role in American law, politics, and society grew dramatically. The federal courts took on new responsibilities as the United States became an urban, industrialized country with an economy characterized by large business corporations operating on a national scale. In the name of protecting the property rights of individuals and corporations, the Supreme Court gradually broadened its interpretation of the Fourteenth Amendment and the role of the federal courts as a check on state government power. Congress's expansion of federal court jurisdiction over civil suits based on diversity of citizenship along with the growth in new federal regulatory and criminal statutes in the early twentieth century led to an unprecedented amount of litigation before federal judges.The expanded authority of the federal judiciary became the subject of heated political debate in the late nineteenth and early twentieth centuries. Southern Congressmen, already resentful of the federal government's Reconstruction era interventions on behalf of freed African Americans, saw the growing reach of federal courts as further evidence of encroaching federal power. By the 1870s and 1880s, southerners were joined by midwestern and western state lawmakers, judges, and lawyers angered that eastern financiers and corporations could force their citizens into federal courts, which they believed were more distant, expensive, and congested than state courts. They protested Supreme Court decisions nullifying state regulation of corporations and argued that the federal courts were infringing on the authority of state governments, and especially state courts, to govern themselves. Labor leaders throughout the country charged the federal courts with protecting the interests of business at the expense of workers. Congressional Democrats, local lawyers, and some progressive political reformers proposed legislation to restrict federal court jurisdiction, to limit the exercise of judicial review, and to weaken judicial equity powers. Court critics also proposed measures to make federal judges more accountable to the people through the election of judges and the popular recall of judicial decisions.
"The relationship between the government and religion is deeply divisive. With the recent changes in the composition of the Supreme Court, the First Amendment law concerning religion is likely to change dramatically in the years ahead. The Court can be expected to reject the idea of a wall separating church and state and permit much more religious involvement in government and government support for religion. The Court is also likely to expand the rights of religious people to ignore legal obligations that others have to follow, such laws that require the provision of health care benefits to employees and prohibit businesses from discriminating against people because of their sexual orientation. This book argues for the opposite and the need for separating church and state. After carefully explaining all the major approaches to the meaning of the Constitution's religion clauses, the book argues that the best approaches are for the government to be strictly secular and for there to be no special exemptions for religious people from neutral and general laws that others must obey. The book argues that this separationist approach is most consistent with the concerns of the founders who drafted the Constitution and with the needs of a religiously pluralistic society in the 21st century"--
2004 marks the fiftieth anniversary of the Supreme Court's unanimous decision to end segregation in public schools. Many people were elated when Supreme Court Chief Justice Earl Warren delivered Brown v. Board of Education of Topeka in May 1954, the ruling that struck down state-sponsored racial segregation in America's public schools. Thurgood Marshall, chief attorney for the black families that launched the litigation, exclaimed later, "I was so happy, I was numb." The novelist Ralph Ellison wrote, "another battle of the Civil War has been won. The rest is up to us and I'm very glad. What a wonderful world of possibilities are unfolded for the children!" Here, in a concise, moving narrative, Bancroft Prize-winning historian James T. Patterson takes readers through the dramatic case and its fifty-year aftermath. A wide range of characters animates the story, from the little-known African Americans who dared to challenge Jim Crow with lawsuits (at great personal cost); to Thurgood Marshall, who later became a Justice himself; to Earl Warren, who shepherded a fractured Court to a unanimous decision. Others include segregationist politicians like Governor Orval Faubus of Arkansas; Presidents Eisenhower, Johnson, and Nixon; and controversial Supreme Court justices such as William Rehnquist and Clarence Thomas. Most Americans still see Brown as a triumph--but was it? Patterson shrewdly explores the provocative questions that still swirl around the case. Could the Court--or President Eisenhower--have done more to ensure compliance with Brown? Did the decision touch off the modern civil rights movement? How useful are court-ordered busing and affirmative action against racial segregation? To what extent has racial mixing affected the academic achievement of black children? Where indeed do we go from here to realize the expectations of Marshall, Ellison, and others in 1954?
"Some time back in the early '00s, when-thanks to Dean John Sexton, my good friends Larry Kramer and John Ferejohn, and other colleagues-I used to hang out at New York University Law School, I had lunch one day with Dedi Felman, who was then a legal editor at Oxford University Press. We discussed her idea of doing a series of short provocative books on problems of rights in American constitutional history. When Geoffrey Stone of the University of Chicago (my literal birthplace) took over editing The Unalienable Rights series that Dedi organized, I quickly staked a claim to the Free Exercise Clause of the First Amendment. This interest reflected a longstanding concern with James Madison, dating to my dissertation work in the early 1970s, and other projects I had pursued since, including the problem of how one discusses the original meaning of the Constitution. The idea of religious freedom was a seminal element in the development of Madison's constitutional ideas. Equally important, the two components of the Religion Clause illustrated two landmark aspects of American constitutional practice. The free exercise of religion is a right different from all other rights because of the degree of moral autonomy it invests in each and every one of us. And the disestablishment of religion, by depriving the state of the power of regulating religion, offers the best example of the basic idea that the legislative authority government exercises depends on the will of a sovereign people. These are points we do not readily grasp. In part because contemporary Religion Clause jurisprudence is such a messy and vexed subject, and in part because justices and judges often prefer resolving claims of conscience on general grounds of freedom of speech, this original significance of "the religion question" often escapes attention. The subtitle of this book rests on my conviction that a historically grounded approach to this subject would be of some value to legal scholars. Among other things, that approach involves asking how we should compare the gradual development of European modes of religious tolerance with the emerging American conviction that the free exercise of religion was no longer a matter of mere toleration."--
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.