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This book brings together twelve original essays by leading scholars of law, politics, and society to address the most important question facing the LGBT movement today: What does marriage equality mean for the future of LGBT rights?In doing so, it explores crucial and wide-ranging social, political, and legal issues confronting the LGBT movement, including the impact of marriage equality on political activism and mobilization, antidiscrimination laws, transgender rights, LGBT elders, parenting laws and policies, religious liberty, sexual autonomy, and gender and race differences. The book also looks at how LGBT movements in other nations have responded to the recognition of same-sex marriages, and what we might emulate or adjust in our own advocacy.

Over the past three decades, the United States has embraced the death penalty with tenacious enthusiasm. While most of those countries whose legal systems and cultures are normally compared to the United States have abolished capital punishment, the United States continues to employ this ultimate tool of punishment. The death penalty has achieved an unparalleled prominence in America's public life and left an indelible imprint on politics and culture. It has also provoked intense scholarly debate, much of it devoted to explaining the roots of American exceptionalism. This book takes a different approach to the issue by examining the historical and theoretical assumptions that have underpinned the discussion of capital punishment in the United States today. At various times the death penalty has been portrayed as an anachronism, an inheritance, or an innovation, with little reflection on the consequences that flow from the choice of words. This book represents an effort to restore the sense of capital punishment as a question caught up in history. The chapters pursue different strategies for unsettling the usual terms of the debate. In particular, the chapters use comparative and historical investigations of both Europe and America in order to cast fresh light on familiar questions about the meaning of capital punishment.

Constitutionalism represents America's greatest gift to human freedom, yet its story remains largely untold. For over 200 years, its ideals, ideas, and institutions influenced different peoples in different lands at different times. American constitutionalism and the revolutionary republican documents on which it is based affected countless countries by helping them develop their own constitutional democracies. Western constitutionalism—of which America was a part along with Britain and France—reached a major turning point in global history in 1989, when the forces of democracy exceeded the forces of autocracy for the first time. This book traces the spread of American constitutionalism—from Europe, Latin America, and the Caribbean region, to Asia and Africa—beginning chronologically with the American Revolution and the fateful “shot heard round the world” and ending with the conclusion of the Cold War in 1989. The American model contributed significantly by spearheading the drive to greater democracy throughout the Western world, and this book tells a story that will change the way readers view the important role American constitutionalism played during this era.

Although commonplace today, dual citizenship was once considered an abnormality, or even an abomination. Yet by the last decades of the twentieth century, perhaps fueled by the civil rights movement in America as well as worldwide liberation movements, a global emphasis on human rights helped chip away the stigma traditionally attached to dual citizenship. At Home in Two Countries charts the history of dual citizenship in America from strong disfavor to general acceptance. The status has touched many; there are few Americans who do not have someone in their past or present who has held the status, if only unknowingly. The history reflects on the course of the state as an institution at the level of the individual. The state was once a jealous institution, justifiably demanding an exclusive relationship with its members. Today, the state lacks both the capacity and the incentive to suppress the status as citizenship becomes more like other forms of membership. Dual citizenship allows many to formalize sentimental attachments. For others, it’s a new way to game the international system. This book explains why dual citizenship was once so reviled, why it is a fact of life after globalization, and why it should be embraced today.

Over the past hundred years, average life expectancy in America has nearly doubled. Yet while longevity is celebrated as an achievement in modern civilization, the longer people live, the more likely they are to succumb to chronic, terminal illnesses. In 1900, the average life expectancy was forty-seven years, with a majority of American deaths attributed to influenza, tuberculosis, pneumonia, or other diseases. In 2000, the average life expectancy was nearly eighty years, and for too many people, these long lifespans included cancer, heart failure, Lou Gehrig's disease, AIDS, or other fatal illnesses, and with them, came debilitating pain and the loss of a once-full and often independent lifestyle. This book poses the pressing question: is it appropriate, legally and ethically, for a competent individual to have the liberty to decide how and when to die when faced with a terminal illness? The book charts how the right of a competent, terminally ill person to die on his or her own terms with the help of a doctor has come deeply embroiled in debates about the relationship between religion, civil liberties, politics, and law in American life. Exploring both the legal rulings and the media frenzies that accompanied the Terry Schiavo case and others like it, the book contends that despite raging battles in all the states where right to die legislation has been proposed, the opposition to the right to die is intractable in its stance.

When Beatles star John Lennon faced deportation from the U.S. in the 1970s, his lawyer, Leon Wildes, made a groundbreaking argument. He argued that Lennon should be granted “nonpriority” status pursuant to the prosecutorial discretion policy of the Immigration and Naturalization Service (INS)—a policy maintained by the INS’s successor, the Department of Homeland Security (DHS). In U.S. immigration law, the relevant federal agency exercises prosecutorial discretion favorably when it refrains from enforcing the full scope of the law against one or more persons. A prosecutorial discretion grant is important to an agency seeking to focus on the “truly dangerous,” conserve resources, and enforce immigration law with compassion. The Lennon case marked the first moment that the immigration agency’s prosecutorial discretion policy became public knowledge. Today, the concept of prosecutorial discretion is more widely known in light of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, a record number of deportations, and the stalemate in Congress over immigration reform. This is the first book to comprehensively describe the history, theory, and application of prosecutorial discretion in immigration law, unveiling the powerful role it plays in protecting individuals from deportation and conserving government resources. Shoba Sivaprasad Wadhia draws on her experience as an immigration attorney, policy leader, and law professor to advocate for bolder standards of prosecutorial discretion, greater mechanisms for accountability when such standards are ignored, improved transparency about the cases involving prosecutorial discretion, and recognition of “deferred action” in the law as a formal benefit.

In the past several decades, medicine, the media, and popular culture have focused on mothers as the primary source of health risk for their children, even though American children are healthier than ever. The American legal system both reflects and reinforces this conception of risk. This book explores how this occurs by looking at unconscious psychological processes, including the ways in which we perceive risk, which shape the actions of key legal decisionmakers, including prosecutors, judges, and jurors. These psychological processes inevitably distort the way that ostensibly neutral legal principles are applied in ways that are biased against mothers. The book shows how assertions that mothers and mothers-to-be have “risked” their children’s health play out in practice. Pregnant women, women who do or do not breastfeed, and mothers whose children are injured or killed by the mother’s abusive male partner end up facing civil lawsuits and criminal prosecution. The book also illustrates how America’s resistance to the precautionary principle has led to an epidemic of children poisoned by lead. Vaccination is the only area in which parents are permitted to opt out of medically recommended health care for their children. The book explores the role of “choice” in children’s health and how it is applied unevenly to mothers and others, including manufacturers of toxic products. The book ends with recommendations for real improvement in children’s health.

In 1988, Manhattan US Attorney Rudolph Giuliani brought a massive civil racketeering suit against the leadership of the International Brotherhood of Teamsters (IBT), at the time possibly the most corrupt union in the world. The lawsuit charged that the mafia had operated the IBT as a racketeering enterprise for decades, systematically violating the rights of members and furthering the interests of organized crime. On the eve of trial, the parties settled the case, and twenty years later, the trustees are still on the job. This book is an in-depth study of the US v. IBT, beginning with Giuliani's lawsuit and the politics surrounding it, and continuing with an incisive analysis of the controversial nature of the ongoing trusteeship. The book addresses the larger question of the limits of legal reform in the American labor movement and the appropriate level of government involvement.

Over the last three decades, welfare policies have been informed by popular beliefs that welfare fraud is rampant. As a result, welfare policies have become more punitive and the boundaries between the welfare system and the criminal justice system have blurred—so much so that in some locales prosecution caseloads for welfare fraud exceed welfare caseloads. In reality, some recipients manipulate the welfare system for their own ends, others are gravely hurt by punitive policies, and still others fall somewhere in between. This book endeavors to clear up these gray areas by providing insights into the history, social construction, and lived experience of welfare. It shows why welfare cheating is all but inevitable—not because poor people are immoral, but because ordinary individuals navigating complex systems of rules are likely to become entangled despite their best efforts. Through an examination of the construction of the crime we know as welfare fraud, the book challenges readers to question their assumptions about welfare policies, welfare recipients, and crime control in the United States.

American political and legal culture is uncomfortable with children's sexuality. While aware that sexual expression is a necessary part of human development, law rarely contemplates the complex ways in which it interacts with children and sexuality. Just as the law circumscribes children to a narrow range of roles—either as entirely sexless beings or victims or objects of harmful adult sexual conduct—so too does society tend to discount the notion of children as agents in the domain of sex and sexuality. Where a small body of rights related to sex has been carved out, the central question has been the degree to which children resemble adults, not necessarily whether minors themselves possess distinct and recognized rights related to sex, sexual expression, and sexuality. This book reflects on some of the unique challenges that accompany children in the broader context of sex, exploring from diverse perspectives the ways in which children emerge in sexually related dimensions of law and contemporary life. It explores a broad range of issues, from the psychology of children as sexual beings to the legal treatment of adolescent consent. It also explores whether and when children have a right to expression as understood within the First Amendment. This book goes beyond the traditional discourse of children as victims of adult sexual deviance by highlighting children as agents and rights holders in the realm of sex, sexuality, and sexual orientation.

This book seeks to provide a fresh perspective on a familiar subject: civil litigation. It begins by providing an overview of civil litigation, explaining its benefits, and then identifying the features of a well-working civil litigation system. It then evaluates both alleged and actual shortcomings of the existing litigation system. The analysis here further argues that the civil litigation system sees both too few cases and too much litigation. That is, due to prohibitive litigation costs, many with valid yet modest legal claims cannot afford to litigate, while those who enjoy access to the courts have incentives to over-litigate by imposing costs on their legal adversaries. To address these twin problems, this book proposes a number of concrete reforms to lower the costs of litigation and, in so doing, to promote greater access to the courts.

American college campuses, where ideas are freely exchanged, contested, and above all uncensored, are historical hotbeds of political and social turmoil. In the past decade alone, the media has carefully tracked the controversy surrounding the speech of Iranian President Mahmoud Ahmadinejad at Columbia, the massacres at Virginia Tech, the dismissal of Harvard's President Lawrence Summers, and the lacrosse team rape case at Duke, among others. No matter what the event, the conflicts that arise on U.S. campuses can be viewed in terms of constitutional principles, which either control or influence outcomes of these events. In turn, constitutional principles are frequently shaped and forged by campus culture, creating a symbiotic relationship in which constitutional values influence the nature of universities, which themselves influence the nature of our constitutional values. This book uses the American university as a lens through which to view the Constitution in action. Drawing on landmark cases and conflicts played out on college campuses, it demonstrates how five key constitutional ideas—the living Constitution, the division between public and private spheres, the distinction between rights and privileges, ordered liberty, and equality—are not only fiercely contested on college campuses, but also dominate the shape and identity of American university life. The book demonstrates that the American college community, like the Constitution, is orderly and hierarchical yet intellectually free and open, a microcosm where these constitutional dichotomies play out with heightened intensity.

Intellectual property (IP) law is premised on assumptions about creative behavior. Fundamentally, the case for regulation assumes that creators require a legal right to prevent copying, or they will under-invest in new works. But this premise fails to fully capture the reality of creative production. It ignores the range of powerful non-economic motivations that compel creativity. Equally importantly, it overlooks the capacity of creative industries for self-governance and innovative social and market responses to appropriation. This book reveals the on-the-ground practices of a range of creators and innovators. In doing so, it challenges intellectual property orthodoxy by showing that incentives for creative production often exist in the absence of, or in disregard for, formal legal protections. Instead, these communities rely on evolving social norms and market responses—sensitive to their particular cultural, competitive, and technological circumstances—to ensure creative incentives. From tattoo artists to medical researchers, Nigerian filmmakers to roller derby players, the communities illustrated in this book demonstrate that creativity can thrive without legal incentives, and perhaps more strikingly, that some creative communities prefer self-regulation to law. Beyond their value as descriptions of specific industries and communities, the accounts collected here help to ground debates over IP policy in the empirical realities of the creative process. Their parallels and divergences also highlight the value of rules that are sensitive to the unique mix of conditions and motivations of particular industries and communities, rather than the monoculture of uniform regulation of the current IP system.

Throughout history obscenity has not really been about sex but about degradation. Sexual depictions have been suppressed when they were seen as lowering the status of humans, furthering our distance from the gods or God and moving us toward the animals. In the current era, when we recognize ourselves and both humans and animals, sexual depiction has lost some of its sting. Its degrading role has been replaced by hate speech that distances groups, whether based on race, ethnicity, gender, or sexual orientation, not only from God but from humanity to a subhuman level. This book traces the legal trajectory of degradation as it moved from sexual depiction to hateful speech. Looking closely at hate speech in several arenas, including racist, homophobic, and sexist speech in the workplace, classroom, and other real-life scenarios, the book posits that if hate speech is today's conceptual equivalent of obscenity, then the body of law that dictated obscenity might shed some much-needed light on what may or may not qualify as punishable hate speech.

The pardon is an act of mercy, tied to the divine right of kings. Why did New York retain this mode of discretionary justice after the Revolution? And how did the advent of the penitentiary and the introduction of parole transform governors’ use of their prerogative? This book answers these questions by mining previously unexplored evidence held in official pardon registers, clemency case files, reports of prisoner aid associations, and parole hearing records. This is the first work of history to analyze mercy and parole through the same lens, as related but distinct forms of discretionary decision making. It draws on governors’ public papers and private correspondence to probe their approach to clemency, and it uses qualitative and quantitative methods to profile petitions for mercy, highlighting controversial cases that stirred public debate. Political pressure to render the use of discretion more certain and less personal grew stronger over the nineteenth century, peaking during state constitutional conventions, and it reached its height in the Progressive Era. Yet, New York’s legislators left the power to pardon in the governor’s hands, where it remains today. Unlike previous works that describe parole as the successor to the pardon, this book argues that reliance upon and faith in discretion has proven remarkably resilient, even in the state that led the world toward penal modernity.

Over the past thirty years, there has been a dramatic shift in the way the legal system approaches and resolves family disputes. Traditionally, family law dispute resolution was based on an “adversary” system: two parties and their advocates stood before a judge who determined which party was at fault in a divorce and who would be awarded the rights in a custody dispute. Now, many family courts are opting for a “problem-solving” model in which courts attempt to resolve both legal and non-legal issues. At the same time, American families have changed dramatically. Divorce rates have leveled off and begun to drop, while the number of children born and raised outside of marriage has increased sharply. Fathers are more likely to seek an active role in their children's lives. While this enhanced paternal involvement benefits children, it also increases the likelihood of disputes between parents. As a result, the families who seek legal dispute resolution have become more diverse and their legal situations more complex. This book argues that the current “problem solving” model fails to address the realities of today's families. The book suggests that while today's dispute resolution regime may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family with lawyers representing all parties—a model that fits poorly with the realities of today's disputing families. To serve the families it is meant to help, the legal system must adapt and reshape itself.

This book presents the fourth collection of the James Madison lectures delivered at the New York University School of Law, offering thoughtful examinations of an array of topics on civil liberties by a distinguished group of federal judges, including Justice Stephen Breyer of the Supreme Court. The result is a fascinating look into the minds of the judges who interpret, apply, and give meaning to the U.S. “embattled Constitution.” This book explores wide-ranging issues. Are today's public schools racially segregated? To what extent can the federal courts apply the Bill of Rights without legislative guidance? And what are the criteria for the highest standards of judging and constitutional interpretation? The book also discusses how and why the U.S. Constitution came to be embattled, shining a spotlight on the current polarization in both the Supreme Court and the American body politic and offering careful and informed analysis of how to bridge these divides.

The United States is in the midst of a heated conversation over how the Constitution impacts national security. In a traditional reading of the document, America uses military force only after a full and informed national debate. However, modern presidents have had unparalleled access to the media as well as control over the information most relevant to these debates, which jeopardizes the abilities of a democracy's citizens to fully participate in the discussion. This book targets this issue of presidential dominance and proposes an ambitious solution: a First Amendment that makes sure the voices of opposition are heard. It argues that the First Amendment's goal is to protect the entire structure of democratic debate, even including activities ancillary to the dissemination of speech itself. Assessing the right of political association, the use of public streets and parks for political demonstrations, the press's ability to comment on public issues, and presidential speech on national security, the book examines why this democratic model of free speech is essential at all times, but especially during the War on Terror.

In this first legal analysis of Title IX, the book assesses the statute's successes and failures, using a feminist theory lens to understand, defend, and critique the law. While the statute has created tremendous gains for female athletes, not only raising the visibility and cultural acceptance of women in sports, but also creating social bonds for women, positive body images, and leadership roles, the disparities in funding between men's and women's sports have remained remarkably resilient. At the same time, female athletes continue to receive less prestige and support than their male counterparts, which in turn filters into the arena of professional sports. The book provides a richer understanding and appreciation of what Title IX has accomplished, while taking a critical look at the places where the law has fallen short. The book fully explores the theory, policy choices, and successes and limitations of this historic law.

The U.S. detention center at Guantánamo Bay has long been synonymous with torture, secrecy, and the abuse of executive power. It has come to epitomize lawlessness and has sparked protracted legal battles and political debate. For too long, however, Guantánamo has been viewed in isolation and has overshadowed a larger, interconnected global detention system that includes other military prisons such as Bagram Air Base in Afghanistan, secret CIA jails, and the transfer of prisoners to other countries for torture. Guantánamo is simply—and alarmingly—the most visible example of a much larger prison system designed to operate outside the law. This book examines the rise of the U.S.-run global detention system that emerged after 9/11 and the efforts to challenge it through habeas corpus (a petition to appear in court to claim unlawful imprisonment). The book gives an insider's view of the detention of “enemy combatants” and an accessible explanation of the complex forces that keep these systems running. In the age of terrorism, some argue that habeas corpus is impractical and unwise. The book advocates that it remains the single most important check against arbitrary and unlawful detention, torture, and the abuse of executive power.