Legal Pluralism in Conflict:  Coping with Cultural Diversity in Law by Prakash Shah
London ; Portland, Or. : Glass House Press, 2005
K236 .S53 2005 Balcony

Randall P. Bezanson's How Free Can Religion Be? explores the Supreme Court's varied history of interpreting the religious guarantees outlined in the First Amendment. The book discusses eight provocative Supreme Court decisions to track the evolution of Free Exercise and Establishment Clause doctrine, focusing on the court's shift from strict separation of church and state to a position where the government accommodates and even fosters religion.

Understanding the First Amendment as a complex stew of untested political theory, fear of unlimited central government, universal acceptance of Christianity, uncertain ideas about liberty, and the backbone of a secular democracy, Bezanson evaluates the way that the Supreme Court has invoked historical perspectives to follow the shifting threads of judicial theory through a series of detailed case studies. Beginning with cases in the latter half of the nineteenth century, the cases present new problems and revisit some old ones as well: the Mormon Church's claimed belief in polygamy; state support for religious schools; the teaching of evolution and creationism in public schools; Amish claims for exemption from compulsory education laws; comparable claims for Native American religion in relation to drug laws; and rights of free speech and equal access by religious groups in colleges and public schools.

Historical but not a work of history, How Free Can Religion Be? invites readers into a rewarding examination of the contested and ever-changing role and meaning of religion in America. Rather than aiming at conclusions about whether the Court's varied enforcment of the First Amendment's ambiguously worded guarantees is right or wrong, Bezanson instead works to identify the principles underlying the changes. Using transcripts of oral arguments before the Supreme Court accompanied by his own editorial narration, he engages the reader in a revealing Socratic discussion of the issues and encourages them to draw their own conclusions.

What's the difference between owning a painting, a dog, or a young child? For starters, you can't own a child, but you are legally responsible for their care. You can own a painting and a dog; both fall under the jurisdiction of the law and in particular, property rights. But why should a dog, man's best friend, an animal with a mind and emotions, fall under the same general category as a painting? Juxtaposed in this way, the question seems silly. How could the law be so foolish? Can't lawyers see the difference? Why shouldn't dogs end up in the same category as young children, a category of living things that require our care? If the law recognized dogs, along with cats, cows, mice, monkeys, birds, and flies as requiring legal guardianship, this would have radical consequences for how we live our lives. We couldn't keep animals in zoos, couldn't eat them, use their fur to keep warm, or test them with drugs to improve our own health. Their lives would be different, and so would ours.

This book explores these issues, but does so in a fresh new way. Rather than engage the debate from the perspective of a single voice, or the combination of voices from different experts, we present a set of essays from a lawyer philosopher, biochemist, psychologist, and animal scientist, together with a group of educated students engaged in the debate. The essays are set up to present both sides, some adopting arguments in favor of a shift to legal guardianship, while others support their status as property. Experts in the field will be engaged by the subtle issues surrounding this debate, while educators will find the student essays refreshing and of interest in class room seminars.

In the late 1970s, feminist scholars and activists joined together to build a movement aimed at bringing feminist theory and experiences to the practice and teaching of American law. Since then, the feminist jurisprudence movement has taken root, with courts and legislatures addressing matters of sex and gender inequality, and law schools employing feminist and post-feminist theory in the classroom. In this important book, Ann Scales, a founding contributor to the movement, reflects on the past, present, and future of feminist jurisprudence.

Legal Feminism situates the feminist jurisprudence movement within the larger context of Western law and philosophy, focusing first on common problem areas of legal theory and decision-making, and then explaining how feminist jurisprudence can analyze and address these issues in new ways. Throughout, Scales draws on legal disputes to show how feminist theory works in the courtroom and in other real-life arenas.

Part personal memoir, part primer, and part treatise, Legal Feminism is a de-jargonized, lively account of how feminist jurisprudence can solve traditional legal conflicts, and why it matters to anyone committed to building an equitable and progressive society.

In its application, the First Amendment has become one-sided. Even though America is virtually drowning in speech, the First Amendment only applies to the speaker's delivery of speech. Left out of consideration is the one participant in the communications process who is the most vulnerable and least protected -- the helpless recipient of offensive speech. In Rediscovering a Lost Freedom, Patrick Garry addresses what he sees as the most pressing speech problem of the twenty-first century: an often irresponsible media using the First Amendment as a shield behind which to hide its socially corrosive speech. To Garry, the First Amendment should protect the communicative process as a whole. And for this process to be free and open, listeners should have as much right to be free from unwanted speech as speakers do of not being thrown in jail for uttering unpopular ideas.

Rediscovering a Lost Freedom seeks to modernize the First Amendment. With other constitutional rights, changed circumstances have prompted changes in the law. Restrictions on political advertising seek to combat the perceived influences of big money; the Second Amendment right to bear arms, due to the prevalence of violence in America, has been curtailed; and the Equal Protection clause has been altered to permit affirmative action programs aimed at certain racial and ethnic groups. But when it comes to the flood of violent and vulgar media speech, there has been no change in First Amendment doctrines. This work proposes a government-facilitated private right to censor. Rediscovering a Lost Freedom will be of interest to students of American law, history, and the U.S. Constitution.

Particularly critical of the U.S. Patriot Act, Gross outlines what he argues to be the three cornerstones of Israel's experience with terrorism applicable to other democracies. On this platform, he bases his examination of the various laws that apply to a democracy's fight against terrorism, providing sharp and wide-ranging analysis that will be of great use to citizens and governments worldwide. Both provocative and informative, The Struggle of Democracy against Terrorism will appeal to students and teachers of law, political science, and philosophy, as well as to citizens and activists concerned with the impact of terrorism on civil liberties.

The Qualities of a Citizen traces the application of U.S. immigration and naturalization law to women from the 1870s to the late 1960s. Like no other book before, it explores how racialized, gendered, and historical anxieties shaped our current understandings of the histories of immigrant women. The book takes us from the first federal immigration restrictions against Asian prostitutes in the 1870s to the immigration "reform" measures of the late 1960s. Throughout this period, topics such as morality, family, marriage, poverty, and nationality structured historical debates over women's immigration and citizenship.

At the border, women immigrants, immigration officials, social service providers, and federal judges argued the grounds on which women would be included within the nation. As interview transcripts and court documents reveal, when, where, and how women were welcomed into the country depended on their racial status, their roles in the family, and their work skills. Gender and race mattered.

The book emphasizes the comparative nature of racial ideologies in which the inclusion of one group often came with the exclusion of another. It explores how U.S. officials insisted on the link between race and gender in understanding America's peculiar brand of nationalism. It also serves as a social history of the law, detailing women's experiences and strategies, successes and failures, to belong to the nation.

Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book.

In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy.

Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia.

As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.