The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

Author: David Rudenstine

Publisher: Oxford University Press

ISBN: 0199381488

Category: Military law

Page: 344

View: 5995

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In October 1948-one year after the creation of the U.S. Air Force as a separate military branch-a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch. David Rudenstine's 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. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.
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Surveillance and the Law

Language, Power and Privacy

Author: Maria Helen Murphy

Publisher: Routledge

ISBN: 0429938802

Category: Law

Page: 98

View: 8494

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Surveillance of citizens is a clear manifestation of government power. The act of surveillance is generally deemed acceptable in a democratic society where it is necessary to protect the interests of the nation and where the power is exercised non-arbitrarily and in accordance with the law. Surveillance and the Law analyses the core features of surveillance that create stark challenges for transparency and accountability by examining the relationship between language, power, and surveillance. It identifies a number of features of surveillance law, surveillance language, and the distribution of power that perpetuate the existing surveillance paradigm. Using case studies from the US, the UK, and Ireland, it assesses the techniques used to maintain the status quo of continued surveillance expansion. These jurisdictions are selected for their similarities, but also for their key constitutional distinctions, which influence how power is distributed and restrained in the different systems. Though the book maintains that the classic principles of transparency and accountability remain the best means available to limit the arbitrary exercise of government power, it evaluates how these principles could be better realised in order to restore power to the people and to maintain an appropriate balance between government intrusion and the right to privacy. By identifying the common tactics used in the expansion of surveillance around the globe, this book will appeal to students and scholars interested in privacy law, human rights, information technology law, and surveillance studies.
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Restoring the Global Judiciary

Why the Supreme Court Should Rule in U.S. Foreign Affairs

Author: Martin S. Flaherty

Publisher: Princeton University Press

ISBN: 069118612X

Category: Political Science

Page: 344

View: 4876

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Why there should be a larger role for the judiciary in American foreign relations In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and the president. Challenging this idea, Restoring the Global Judiciary argues instead for a robust judicial role in the conduct of U.S. foreign policy. With an innovative combination of constitutional history, international relations theory, and legal doctrine, Martin Flaherty demonstrates that the Supreme Court and federal judiciary have the power and duty to apply the law without deference to the other branches. Turning first to the founding of the nation, Flaherty shows that the Constitution’s original commitment to separation of powers was as strong in foreign as domestic matters, not least because the document shifted enormous authority to the new federal government. This initial conception eroded as the nation rose from fledgling state to superpower, fueling the growth of a dangerously formidable executive that today asserts near-plenary foreign affairs authority. Flaherty explores how modern international relations makes the commitment to balance among the branches of government all the more critical and he considers implications for modern controversies that the judiciary will continue to confront. At a time when executive and legislative actions in the name of U.S. foreign policy are only increasing, Restoring the Global Judiciary makes the case for a zealous judicial defense of fundamental rights involving global affairs.
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Nations in Transit

Civil Society, Democracy, and Markets in East Central Europe and the Newly Independent States

Author: N.A

Publisher: N.A

ISBN: N.A

Category: Civil society

Page: N.A

View: 9209

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Shaping America

The Supreme Court and American Society

Author: Edward F. Mannino

Publisher: N.A

ISBN: N.A

Category: History

Page: 321

View: 8055

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Shaping America offers a compelling survey of American history as viewed through the perspective of the United States Supreme Court, concentrating on how the Courtas decisions have shaped American society and how the Court in turn has been affected by prevailing political cultures, strong public attitudes, and several dominating justices. Edward F. Mannino, a practicing trial lawyer and legal historian, analyzes the historical forces that permitted the Court to affect American society profoundly through some 150 decisions organized along chronological and thematic lines. Casting his gaze across the nationas past, he surveys seminal cases in American constitutional history, including Marbury v. Madison, the New Orleans Slaughterhouse Cases, Plessy v. Ferguson, Brown v. Board of Education, Boumediene v. Bush, and D.C. v. Heller. Mannino takes special interest in cases respecting business and religion in American society and offers concise and objective perspectives on decisions affecting them. Throughout the volume Mannino illustrates the mutual influence the Court and societal forces have on each other, ably demonstrating how Court deliberations affectaand are affected byathe context in which they occur.
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Constitutional Law

Author: Erwin Chemerinsky

Publisher: Aspen Pub

ISBN: N.A

Category: Law

Page: 1574

View: 3328

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In its first edition, Erwin Chemerinskys CONSTITUTIONAL LAW proved that a casebook does not have to be simplistic to be student-friendly. Revised and updated for its Second Edition, this class-tested casebook is a comprehensive, accessible, and current alternative that will enliven your class and enlighten your students. the book retains its distinctive characteristics: thorough, yet concise to avoid overwhelming students with superfluous detail presents the law solely through case excerpts and author-written essays provides both background information and context on constitutional law doctrine flexible organization, no chapter assumes that students have read other chapters for adaptability in the classroom straightforward, accessible writing style Look for these changes in the Second Edition: new subsection, Presidential Powers and the War on Terrorism, in the chapter on federal executive power, which examines executive authority, detentions, Hamdi v. Rumsfeld, and the constitutionality of military tribunals expanded treatment of sovereign immunity, to better reflect the way the topic is taught enriched coverage throughout the book, with fuller presentation of some cases and the inclusion of some dissents This careful revision also presents the most recent and significant cases in a number of areas, such as: partisan gerrymandering and the political question doctrine (Vieth v. Jubelirer) sovereign immunity (University of Alabama v. Garrett, Nevada Department of Human Resources v. Hibbs, Tennessee v. Lane) preemption (Lorrilard Tobacco Co. v. Reilly, American Insurance v. Garimendi) state action, emphasizing entwinement (Brentwood Academy Secondary School v. Tennessee Athletic Association) the taking clause (Palazzolo v. Rhode Island, Tahoe Sierra Preservation Counci, Inc.l v. Tahoe Regional Planning Agency, Brown v. Legal Foundation of Washington) the overruling of Bowers v. Hardwick in Lawrence v. Texas affirmative action (Grutter v. Bollinger and Gratz v. Bollinger) the First Amendment (Ashcroft v. American Civil Liberties Union, Ashcroft v. the Free Speech Coalition, Virginia v. Black, McConnell v. Federal Election Commission, Good News Club v. Milford Central School) the Establishment Clause as it pertains to vouchers (Zelman v. Simmons Harris), the Pledge of Allegiance (Elk Grove Unified School Dist. v. Newdow), and the question of whether the government must allow its scholarships to be used by students studying for the clergy (Locke v. Davey) Please visit the new companion website to learn more about this book. Website: http://www.aspenlawschool.com/chemerinsky_constitutionallaw2
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