• October 27, 2011
    The Constrained Court
    Law, Politics, and the Decisions Justices Make
    Michael A. Bailey and Forrest Maltzman

    By Michael A. Bailey, a government professor at Georgetown University  and Forrest Maltzman, a political science professor at George Washington University.

    When asked to comment on Scalia’s jurisprudence, Richard Posner recently said “I don’ think he or anyone can derive results in difficult, emotionally charged cases from the constitutional text.” 

    When former future President Rick Perry turned his attention to the court, he wrote that it “adheres to the Constitution in appearance only and as a matter of necessity, finding in it or in previous case law the single nugget around which the court can marginally justify its policy choice to keep up the pretense of actually caring one iota about the Constitution in the first place.”

    Add these to the pile of support for Segal and Spaeth’s attitudinal model which posits justices simply vote their unconstrained policy preferences.

    But has skepticism about law on the Court gone too far? Are justices really unconstrained?

  • October 20, 2011
    Dispatches from America's Endangered Species Act
    Joe Roman

    By Joe Roman, a conservation biologist and author.

    Last month, Alaska solicited proposals to quantify the costs of protecting polar bears under the Endangered Species Act. The bear had been listed as threatened in 2008, the first species to be federally protected because of global warming.  Some Alaskans objected, afraid that listing would restrict drilling in the Beaufort and Chukchi Seas, where the bears have critical habitat. At first, the state bankrolled a public relations effort to overturn the listing, but when that effort failed, they looked to alternatives. Could they show that listing the polar bear came at too high a price?

    In my book, Listed: Dispatches from America’s Endangered Species Act, I discuss the tradeoffs involved in protecting rare and threatened species. Alaska’s solicitation is part of an unfortunate tradition that focuses solely on the costs of protecting species, rather than including the many benefits that can come from conservation. In the polar bear’s case, this may include ecotourism, of value to the state; the dependence of the Inuit on the bear for spiritual and physical sustenance; and the preservation of sea-ice habitat, which can benefit us all.

    Beyond these services is the value of conservation itself, whether it’s stewardship, the many people who are employed, or volunteer, to protect the bears, or the value of bequesting the bear to our grand children. And finally there’s the value we put on the very existence of the polar bear -- how much would we pay to keep the bear on earth, whether we or our offspring ever had a chance to see it or not?

  • October 13, 2011
    Inside the Castle
    Law and the Family in 20th Century America
    Joanna L. Grossman and Lawrence M. Friedman

    By Joanna L. Grossman, a law professor at Hofstra University, and Lawrence M. Friedman, a law professor at Stanford University and professor by courtesy in the school’s departments of history and political science.

    Family law does not always make the headlines. Still, hardly anything is as important to people in our society as family life; we all have families, and we all need families. And family law is the legal framework that governs (or tries to govern) family life.

    Public attention to family law tends to center on a few controversial flashpoints. Same-sex marriage has been a hot subject for state legislatures and Congress, political candidates at every level, lawyers and judges in courtrooms, at the polls, and in every form of media imaginable.  But at the same time, hugely important developments in the American family and the law that governs them have gone largely unnoticed. 

    Inside the Castle: Law and the Family in 20th Century America deals with the development of family law in the United States in the 20th century. But it is not a history of legal doctrine. It is a book about the ways in which family law has reacted to changes in the larger society. 

    The 20th century was a century of tumultuous change in society; and what was happening in the big world transformed family life and therefore family law in fundamental ways.

  • October 6, 2011
    The Myth of Choice
    Personal Responsibility in a World of Limits
    Kent Greenfield

    By Kent Greenfield, a law professor and Law Fund Research Scholar at Boston College Law School.

    Americans love to be able to choose. The typical grocery store has more than 45,000 different items; the average American family has access to about 120 television channels. Glenn Beck opines, “for us to be able to choose, that’s a blessing.”

    An analogue to the fixation on choice is the focus on personal responsibility.  Because people make choices, they should be able to take personal responsibility for those they make. This sounds like something all of us could agree on, even in this especially tendentious moment in political history.

    My new book, The Myth of Choice: Personal Responsibility In a World of Limits, articulates some reasons to question this mantra of choice and personal responsibility.

    Choice is limited in all kinds of ways. Humans are limited by brain science, habit, authority, culture, and the so-called “free” market, which restricts as much as it empowers. We are easily overwhelmed by choice. Consider the grocery store and television statistics mentioned above -- studies show that people are happier when they choose among fewer, not more, items; television viewers may want lots of channels but actually watch only a handful. 

    Acknowledging the limits on choice is the first step toward recognizing the insidious nature of “personal responsibility” rhetoric. More and more, those on the right equate “personal responsibility” with choice. It is not about maturity or accountability but simply another way of saying that individuals get to make choices for themselves; they are masters of their fate.

    This brand of personal responsibility is used to oppose health care reform, support tort reform, and explain away problems of homelessness or delays in hurricane response. It uses a respect for individual choice to make the political point that government should be small, uninvolved, and deferential to individual decisions.

  • September 29, 2011
    Taking Liberties
    The War on Terror and the Erosion of American Democracy
    Susan N. Herman

    By Susan N. Herman, president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School

    The 10th anniversary of 9/11 may be over, but let’s not move on too fast. As students and fans of the Constitution, many of us have spent time deploring how the “War on Terror” has jeopardized our rights. Now it’s time to deepen that conversation and get serious about reversing the damage.  

    The news is not all bleak. The past decade offers some reassuring evidence of the power and resilience of our Constitution. My new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, discusses a number of ways in which the Constitution’s multiple interlocking layers of self-protection have worked to limit the extent of the damage done. 

    For example, the right to trial by jury enabled an Idaho jury to honor the First Amendment by rejecting the federal government’s attempt to prosecute graduate student Sami al-Hussayen for posting links on a website.  

    Article III’s decision to insulate federal judges empowered some principled judges to test politically driven strategies against the Constitution. Judge Victor Marrero in the Southern District of New York, for instance, found that the absolute and permanent gag orders automatically attaching to National Security Letters violated the First Amendment, because they prevented recipients of these government demands from ever telling anyone – including Congress, a lawyer, or a court – anything about their own experiences.    

    Freedom of the press enabled reporters to tell the public things the government was trying to conceal – as in James Risen and Eric Lichtblau’s New York Times story revealing the long-secret and illegal NSA surveillance program, and Barton Gellman’s Washington Post exposé on the use of National Security Letters.