The Law As It Could Be

by Fiss, Owen M.

• ISBN13: 9780814727263
• ISBN10: 0814727263
• Format: Paperback
• Copyright: 2003-10-01
• Publisher: New York University Press

Summary

View the Table of Contents. Read the Introduction.An uplifting book.--ChoiceRefreshingly straightforward. Fiss writes in the style of John Marshall, sweeping the reader along with vigorous argumentation. --The Law and Politics Book ReviewThe Law As It Could Be gathers Fiss's most important work on procedure, adjudication and public reason, introduced by the author and including contextual introductions for each piece--some of which are among the most cited in Twentieth Century legal studies. Fiss surveys the legal terrain between the landmark cases of Brown v. Board of Education and Bush v. Gore to reclaim the legal legacy of the Civil Rights Movement. He argues forcefully for a vision of judges as instruments of public reason and of the courts as a means of shaping society in the image of the Constitution.In building his argument, Fiss attends to topics as diverse as the use of the injunction to restructure social institutions; how law and economics have misunderstood the role of the judge; why the movement seeking alternatives to adjudication fails to serve the public interest; and why Bush v. Gore was not the constitutional crisis some would have us believe. In so doing, Fiss reveals a vision of adjudication that vindicates the public reason on which Brown v. Board of Education was founded.

Author Biography

Owen Fiss is Sterling Professor of Law at Yale University.

Table of Contents

Preface	ix
1 The Forms of Justice	1	(47)
2 The Social and Political Foundations of Adjudication	48	(11)
3 The Right Degree of Independence	59	(7)
4 The Bureaucratization of the Judiciary	66	(24)
5 Against Settlement	90	(15)
6 The Allure of Individualism	105	(17)
7 The Political Theory of the Class Action	122	(11)
8 The Awkwardness of the Criminal Law	133	(16)
9 Objectivity and Interpretation	149	(23)
10 Judging as a Practice	172	(19)
11 The Death of Law?	191	(16)
12 Reason vs. Passion	207	(14)
13 The Irrepressibility of Reason	221	(8)
14 Bush v. Gore and the Question of Legitimacy	229	(15)
Afterword	244	(7)
Notes	251	(32)
Index	283	(2)
Acknowledgments	285	(2)
About the Author	287