No Litmus Test Law versus Politics in the Twenty-First Century

by Dorf, Michael C.

• ISBN13: 9780742550308
• ISBN10: 0742550303
• Format: Paperback
• Copyright: 2006-03-09
• Publisher: Rowman & Littlefield Publishers

Summary

The courts and, indeed, the law itself are under assault from both right and left. By analyzing the most pressing controversies of our day, No Litmus Test defends the possibility of principled legal decision-making against the attacks of both the right and the left. From Bush v. Gore to the war in Iraq, No Litmus Test demonstrates that even when the law provides no clear-cut right answers, it offers tools for distinguishing good arguments from bad ones.

Author Biography

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University School of Law

Table of Contents

Acknowledgments	xi
Note on Sources	xiii
Introduction: The Relative Autonomy of Law	xv
Part I. The Difference between Law and Politics	1	(26)
1 They Are All Activists Now	3	(6)
2 Is There a Distinction between Law and Politics? Yes, and the Bush v. Gore Decision Proves It	9	(8)
3 Clarence Thomas's Challenge to the Rehnquist Court's Vision Representative Government	17	(4)
4 Does Federal Tort Reform Unduly infringe State Sovereignty?	21	(6)
Part II. Aid and Comfort to the Enemy	27	(68)
5 The Supreme Court Case that Pits Free Speech against Church-State Separation	29	(6)
6 How Abortion Politics impedes Clear Thinking on Other: Issues Involving Fetuses	35	(6)
7 Why the Lawsuit Challenging Tennessee's "Choose Life" License Plates Should Fail	41	(6)
8 Three Bad Reasons--and One Very Good Reason—to Oppose a Constitutional Amendment Barring Same-Sex Marriage	47	(8)
9 A Federal Appeals Court Rules that Universities Can Bar Military Recruiters without Losing Federal Grant Money: A Welcome Result Based on Flawed Reasoning	55	(8)
10 Justice Scalia's Persuasive but Elitist Response to the Duck Hunting Controversy	63	(4)
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	67	(6)
12 Why Swift Boat Veterans for Truth and Other 527 Organizations Can't Be Silenced	73	(6)
13 Does the Constitution Permit the Blue States to Secede? With Permission, Perhaps; Unilaterally, No	79	(8)
14 How the Schiavo Federal Court Case Might Have Been Won	87	(8)
Part III. In Defense of Liberal Judging	95	(32)
15 Washington Yankees in King Arthur's Court: The Supreme Court Journeys to Eighteenth-Century England to Define the Rights of Twenty-First-Century Americans	97	(10)
16 How a Recent, Unanimous Supreme Court Public Housing Decision "Exiles Compassion from the Province of Judging"	107	(6)
17 Could Justice Scalia's Affirmative Action Dissent Become a Self-Fulfilling Prophecy?	113	(6)
18 Is There a Constitutional Right to Sexual Privacy? Finding None, a Federal Appeals Court Upholds Alabama's Sex Toy Prohibition	119	(8)
Part IV. Liberty, Security, and War	127	(58)
19 What Is an "Unlawful Combatant," and Why It Matters: The Status of Detained al-Qaeda and Taliban Fighters	131	(6)
20 The Justice Department's Change of Heart Regarding Torture: A Fair-Minded and Praiseworthy Analysis that Could Have Gone Still Further	137	(8)
21 Who Decides Whether Yaser Hamdi, or Any Other Citizen, Is an Enemy Combatant?	145	(8)
22 Bush Loses in the Supreme Court and America Wins	153	(4)
23 Is Iraq in "Material Breach" of Its Obligations under the UN Resolution? A Geopolitical Question, Not Simply a Legal One	157	(6)
24 Is the War on Iraq Lawful?	163	(8)
25 Why Congressional Power to Declare War Does Not Provide an Effective Check on the President	171	(6)
26 Kerry Stands by His Iraq War Vote, and with Bush, against Constitutional Law Principles	177	(8)
Part V. The Global Village	185	(50)
27 When American States Execute Citizens of Foreign Countries: The Case of Gerardo Valdez	187	(6)
28 Can One Nation Arrest the Foreign Minister of Another? The World Court Says No	193	(6)
29 Should Foreigners Be Permitted to Make Campaign Contributions to U.S. Candidates? Surprisingly, the Answer May Be Yes	199	(6)
30 The Hidden International Influence in the Supreme Court Decision Barring Executions of the Mentally Retarded	205	(8)
31 The Use of Foreign Law in American Constitutional Interpretation: A Revealing Colloquy between Justices Scalia and Breyer	213	(8)
32 Can Ethnic Hatred Be Eliminated by Eliminating Ethnicity? The Rwanda Experiment	221	(6)
33 What a Chinese Height Discrimination Case Says about Chinese (and American) Constitutional Law	227	(8)
Part VI. The Rule of Law(yers)	235	(46)
34 Debate over an ABA Legal Ethics Rule Underscores Lawyers' Competing Obligations to Keep Secret and to Disclose	239	(6)
35 Can the Legal Profession Improve Its Image? Americans Believe Lawyers Are Necessary but Dishonest, Survey Finds	245	(8)
36 Americans' Faith in the Supreme Court—and in the Constitution: Survey Shows Bush v. Gore's Effect Was Limited	253	(8)
37 Whose Constitution Is It Anyway? What Americans Don't Know about the Constitution—and Why It Matters	261	(8)
38 Unsolicited Advice to Law School Applicants: With Prospects Newly Limited, Be Sure You Want to Become a Lawyer	269	(6)
39 How to "Think Like a Lawyer": Advice to New and Prospective Law Students	275	(6)
Appendix	281	(4)
Table of Cases	285	(6)
Index	291	(4)
About the Author	295