Rowman & Littlefield Publishers
Pages: 320
•
Trim: 6 x 9
978-0-7425-5030-8 • Paperback • March 2006 • $54.00 • (£42.00)
Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University School of Law. He is the editor of Constitutional Law Stories (2004) and coauthor, with Laurence H. Tribe, of On Reading the Constitution (1991). He clerked for U.S. Supreme Court Justice Anthony M. Kennedy (1991-1992) and Judge Stephen Reinhardt of U.S. Court of Appeals for the Ninth Circuit (1990-1991).
Chapter 1 Acknowledgements
Chapter 2 About the Author
Chapter 3 Introduction
Part 4 I. The Difference Between Law and Politics
Chapter 5 1. They Are All Activists Now
Chapter 6 2. Is There a Distinction Between Law and Politics? Yes, and the Bush v. Gore Decision Proves It
Chapter 7 3. Clarence Thomas's Challenge to the Rehnquist Court's Vision of Representative Government
Chapter 8 4. Does Federal Tort Law Reform Unduly Infringe State Sovereignty?
Part 9 II. Aid and Comfort to the Enemy
Chapter 10 5. The Supreme Court Case That Pits Free Speech Against Church-State Separation
Chapter 11 6. How Abortion Politics Impedes Clear Thinking on Other Issues Involving Fetuses
Chapter 12 Why the Lawsuit Challenging Tennessee's "Choose Life" License Places Should Fail
Chapter 13 Three Bad Reasons — and One Very Good Reason — to Oppose a Constitutional Amendment Barring Same-Sex Marriage
Chapter 14 A Federal Appeals Court Rules That Universities Can Bar Military Recruiters Without Losing Federal Grant Money: A Welcome Result Based on Flawed Reasoning
Chapter 15 10. Justice Scalia's Persuasive but Elitist Response to the Duck Hunting Controversy
Chapter 16 11. Can a State Make It a Crime to Refuse to Identify Yourself to the Police? In a Narrow Ruling, the Supreme Court Says Yes
Chapter 17 12. Why "Swift Boat Veterans for Truth" and other "527" Organizations Can't Be Silenced
Chapter 18 13. Does the Constitution Permit the Blue States to Secede? With Permission, Perhaps; Unilaterally, No
Chapter 19 14. How the Schiavo Federal Court Case Might Have Been Won
Part 20 III. In Defense of Liberal Judging
Chapter 21 15. Washington Yankees in King Arthur's Court: The Supreme Court Journeys to 18th Century England to Define the Rights of 21st Century Americans
Chapter 22 16. How a Recent Supreme Court Public Housing Decision "Exiles Compassion from the Province of Judging"
Chapter 23 17. Could Justice Scalia's Affirmative Action Dissent Become Self-Fulfilling Prophecy?
Chapter 24 18. Is There a Constitutional Right to Sexual Privacy? Finding None, a Federal Appeals Court Upholds Alabama's Sex Toy Prohibition
Part 25 IV. Liberty, Security, and War
Chapter 26 19. What is an "Unlawful Combatant," and Why It Matters: The Status of Detained al Qaeda and Taliban Fighters
Chapter 27 20. The Justice Department's Change of Heart Regarding Torture: A Fair-Minded and Praiseworthy Analysis That Could Have Gone Still Further
Chapter 28 21. Who Decides Whether Yaser Hamdi, or Any Other Citizen, Is an Enemy Combatant?
Chapter 29 22. Bush Loses in the Supreme Court and America Wins
Chapter 30 23. Is Iraq in "Material Breach" of its Obligations under the U.N. Resolution? A Geopolitical Question, Not Simply a Legal One
Chapter 31 24. Is the War on Iraq Lawful?
Chapter 32 25. Why Congressional Power to Declare War Does Not Provide an Effective Check on the President
Chapter 33 26. Kerry Stands By His Iraq Vote, and with Bush, Against Constitutional Principles
Part 34 V. The Global Village
Chapter 35 27. When American States Execute Citizens of Foreign Countries: The Case of Gerardo Valdez
Chapter 36 28. Can One National Arrest the Foreign Minister of Another? The World Court Says No
Chapter 37 29. Should Foreigners Be Permitted to Make Campaign Contributions to U.S. Candidates? Surprisingly, the Answer May Be Yes
Chapter 38 30. The Hidden International Influence in the Supreme Court Decision Barring Executions of the Mentally Retarded
Chapter 39 31. The Use of Foreign Law in American Constitutional Interpretation: A Revealing Colloquy Between Justices Scalia and Breyer
Chapter 40 32. Can Ethnic Hatred Be Eliminated by Eliminating Ethnicity? The Rwanda Experiment
Chapter 41 33. What a Chinese Height Discrimination Case Says About Chinese (and American) Constitutional Law
Part 42 The Rule of Law(yers)
Chapter 43 34. Debate over an ABA Legal Ethics Rule Underscores Lawyers' Competing Obligations to Keep Secret and to Disclose
Chapter 44 35. Can the Legal Profession Improve its Image? Americans Believe Lawyers to Be Necessary but Dishonest, Survey Finds
Chapter 45 36. Americans' Faith in the Supreme Court — And in the Constitution: Survey Shows Bush v. Gore's Effect was Limited
Chapter 46 37. Whose Constitution Is it Anyway? What Americans Don't Know About the Constitution — And Why It Matters
Chapter 47 38. Unsolicited Advice to Law School Applicants: With Prospects Newly Limited, Be Sure You Want to Become a Lawyer
Chapter 48 39. How to "Think Like a Lawyer": Advice to New and Prospective Law Students
Chapter 49 Appendix
Chapter 50 Bibliographical Note
Chapter 51 Index
Written to be accessible to the intelligent layman while broadening even the seasoned expert's understanding, Michael Dorf's colorful, creative and invariably clear analyses of the most vexing constitutional controversies of our time add up to a compelling case for an approach to law and to judging that rejects the extremes of both right and left — and emerges with a position more reasonable and reasoned than either and both more interesting, and more surprising, than a simple average of the two.
— Laurence H. Tribe, Harvard University
Professor Dorf strives for fairness throughout, arguing against fetishizing the law at the cost of losing valuable nonlegal perspectives.
— Harvard Law Review, March 2007
A distinguished law professor shows that law is—and must be—something more than politics by other means. Using contemporary examples, many of which the reader will find familiar, the author teases out a remarkably coherent theory of principled judging. This splendid effort takes the reader beyond hollow labels such as "judicial activist" and "strict constructionist" and gives important insights into the kind of thinking that we should look for in a federal judge or justice
— Alex Kozinski, Judge, U.S. Court of Appeals, Ninth Circuit