Masters of Illusion:  The Supreme Court and the Religion Clauses by Frank S. Ravitch
New York : New York University Press, c2007
KF4783 .R38 2007 Balcony

Many legal theorists and judges agree on one major premise in the field of law and religion: that religion clause jurisprudence is in a state of disarray and has been for some time. In Masters of Illusion, Frank S. Ravitch provocatively contends that both hard originalism (a strict focus on the intent of the framers) and neutrality are illusory in religion clause jurisprudence, the former because it can not live up to its promise for either side in the debate and the latter because it is simply impossible in the religion clause context. Yet these two principles have been used in almost every Supreme Court decision addressing religion clause questions.

Ravitch unpacks the various principles of religion clause interpretation, drawing on contemporary debates such as school prayer and displaying the Ten Commandments on courthouses, to demonstrate that the neutrality principle does not work in a pluralistic society. When defined by large, overarching principles of equality and liberty, neutrality fails to account for differences between groups and individuals. If, however, the Court drew on a variety of principles instead of a single notion of neutrality to decide whether or not laws facilitated or discouraged religious practices, the result could be a more equitable approach to religion clause cases.

A brilliant and unprecedented work, Chasing Justice is the riveting chronicle of how a smalltown murder became one of the worst cases of prosecutorial misconduct in American history—and sent the author, an innocent man, to hell for twenty-two harrowing years. Kerry Max Cook is one of the longest-tenured death-row prisoners to be freed: This is his unbelievable story and the only firsthand account of its kind.

Wrongfully convicted of killing a young woman in Texas, Cook was sentenced to death in 1978 and served two decades on death row, in a prison system so notoriously brutal and violent that in 1980 a federal court ruled that serving time in Texas's jails was "cruel and unusual punishment." As scores of men around him were executed, Cook relentlessly battled a legal system that wanted him dead; meanwhile he fought daily to survive amid unspeakable conditions and routine assaults. When an advocate and a crusading lawyer joined his struggle in the 1990s, a series of retrials was forced. At last, in November 1996, Texas's highest appeals court threw out Cook's conviction, citing overwhelming evidence of police and prosecutorial misconduct.

And finally in the spring of 1999 long-overlooked DNA evidence was tested and it linked another man to the rape and murder for which Cook had been convicted. Today, Cook is a free man and the proud father of a young son.

A shocking look inside death row, a legal thriller, and an inspirational story of one man's ultimately triumphant fight against extreme adversity, Chasing Justice is a landmark work, written with the powerful authenticity of Cook's own hand. It will forever unsettle our view of the American justice system.

Building on the insights of both disability studies and civil rights scholars, Mark C. Weber frames his examination of disability harassment on the premise that disabled people are members of a minority group that must negotiate an artificial yet often damaging environment of physical and attitudinal barriers. The book considers courts' approaches to the problem of disability harassment, particularly the application of an analogy to race and sex harassment and the development of legal remedies and policy reforms under the Americans with Disabilities Act (ADA).

While litigation under the ADA has addressed discrimination in public accommodations, employment, and education, Weber points out that the law has done little to combat disability harassment. He recommends that arguments based on unused provisions of the ADA should be developed and new legal remedies advanced to address the problem. Disability Harassment also draws on case law to explore special problems of harassment in the public schools, and closes with an appeal to judges and lawmakers for expanded legal protection against harassment.

Adequacy lawsuits have, with little fanfare, emerged as a major alternative strategy in the pursuit of improved public education in the United States. Plaintiffs allege insufficient resources to provide students with the quality of education promised in their state's constitution, hoping the courts will step in and order the state to increase funding levels. Since 1985, more than thirty states have faced such suits. How pervasive—and effective—is this trend? What are its ramifications, in local school districts and on a broader scale? This important new book addresses those questions.

In School Money Trials, thoughtful contributors consider this growing phenomenon from several different viewpoints. For example, they investigate the legal theory behind adequacy lawsuits, examining how courts have interpreted the education clauses in state constitutions. Education policy analyst Frederick Hess looks at the politics of implementing adequacy judgments. Research by Christopher Berry finds that the adequacy movement has not yet resulted in broad changes in school funding. Andrew Rudalevige and Michael Heise address how the No Child Left Behind Act and adequacy lawsuits affect one another. And according to authors Matthew Springer and James Guthrie, adequacy litigation has more fully politicized the process of cost modeling in school finance.

This is the most comprehensive analysis to date of the adequacy lawsuit, a topic of increasing importance in a controversial area of public policy that touches virtually all Americans. It will be of interest to readers engaged in education policy debates and those concerned about the power of the courts to make policy rather than simply to enforce it.

Since the earliest days of our nation, high-profile trials have captivated the American imagination. But such trials are more than mere spectacle: by providing a forum for discussion of contentious issues, they also serve as public ceremonies and barometers of thought. In The Trial in American Life, Robert Ferguson argues that we can only understand the importance of pivotal trials by examining their public impact as well as their legal significance.

In a bravura performance that ranges from Aaron Burr to O.J. Simpson, Ferguson traces both the legal implications and the cultural ripples of prominent American legal battles. He brings together courtroom transcripts, newspaper accounts, and the work of such writers as Emerson, Thoreau, William Dean Howells, and E. L. Doctorow to show what happens when courtrooms are forced to cope with unresolved communal anxieties and make legal decisions that change how America thinks about itself. How do such trials mushroom into major public dramas with fundamental ideas at stake? Why did outcomes that we now see as unjust enjoy community support at the time? At what point does overexposure undermine a trial’s role as a legal proceeding?

While America is focused on religious militancy and terrorism in the Middle East, democracy has been under siege from religious extremism in another critical part of the world. As Martha Nussbaum reveals in this penetrating look at India today, the forces of the Hindu right pose a disturbing threat to its democratic traditions and secular state.

Since long before the 2002 Gujarat riots--in which nearly two thousand Muslims were killed by Hindu extremists--the power of the Hindu right has been growing, threatening India's hard-won constitutional practices of democracy, tolerance, and religious pluralism. Led politically by the Bharatiya Janata Party, the Hindu right has sought the subordination of other religious groups and has directed particular vitriol against Muslims, who are cast as devils in need of purging. The Hindu right seeks to return to a "pure" India, unsullied by alien polluters of other faiths, yet the BJP's defeat in recent elections demonstrates the power that India's pluralism continues to wield. The future, however, is far from secure, and Hindu extremism and exclusivity remain a troubling obstacle to harmony in South Asia.

Nussbaum's long-standing professional relationship with India makes her an excellent guide to its recent history. Ultimately she argues that the greatest threat comes not from a clash between civilizations, as some believe, but from a clash within each of us, as we oscillate between self-protective aggression and the ability to live in the world with others. India's story is a cautionary political tale for all democratic states striving to act responsibly in an increasingly dangerous world.

Largely forgotten until Cohen’s papers were released more than half a century later, the memorandum now receives the attention it has long deserved. David E. Wilkins presents the entire work, edited and introduced with an essay that describes its origins and places it in historical context. Cohen recommended that each tribe consider preserving ancient traditions that offered wisdom to those drafting constitutions. Strongly opposed to “sending out canned constitutions from Washington,” he offered ideas for incorporating Indigenous political, social, and cultural knowledge and structure into new tribal constitutions.

On the Drafting of Tribal Constitutions shows that concepts of Indigenous autonomy and self-governance have been vital to Native nations throughout history. As today’s tribal governments undertake reform, Cohen’s memorandum again offers a wealth of insight on how best to amend previous constitutions. It also helps scholars better understand the historic policy shift brought about by the Indian Reorganization Act.

A historian as well as a practicing attorney, Shepard conducted oral interviews with former poverty lawyers and investigated documents and judicial decisions related to hundreds of cases in Alabama, Mississippi, and Georgia, tracing widespread social change over three decades. Before the advent of the legal services programs, Shepard explains, law was often a weapon of oppression wielded with singular force against impoverished southerners, particularly women and African Americans. By utilizing legal processes, the poor—through poverty lawyers—saw tangible gains in cases involving federal, state, and local social programs, low-income housing, consumer rights, domestic relations, and civil rights. They also confronted the limits of the American legal and political system in its institutional and cultural boundaries—including gender and race—and its limitations of will.

Poverty lawyers, Shepard argues, did not by themselves create a legal revolution in the South, but they did force southern politicians, policy makers, businessmen, and law enforcement officials to recognize that they could not ignore the legal rights of low-income citizens. Poor southerners too, Shepard reveals, gained a newfound trust, however tenuous, in the American legal system. His narrative of the relationship of poverty lawyers and their clients, and their interaction with legal, political, and social structures, speaks poignantly to justice for all in America.