Would you want to be operated on by a surgeon trained at a medical school that did not evaluate its students? Would you want to fly in a plane designed by people convinced that the laws of physics are socially constructed? Would you want to be tried by a legal system indifferent to the distinction between fact and fiction? These questions may seem absurd, but these are theories being seriously advanced by radical multiculturalists that force us to ask them. These scholars assert that such concepts as truth and merit are inextricably racist and sexist, that reason and objectivity are merely sophisticated masks for ideological bias, and that reality itself is nothing more than a socially constructed mechanism for preserving the power of the ruling elite. In Beyond All Reason, liberal legal scholars Daniel A. Farber and Suzanna Sherry mount the first systematic critique of radical multiculturalism as a form of legal scholarship. Beginning with an incisive overview of the origins and basic tenets of radical multiculturalism, the authors critically examine the work of Derrick Bell, Catherine MacKinnon, Patricia Williams, and Richard Delgado, and explore the alarming implications of their theories. Farber and Sherry push these theories to their logical conclusions and show that radical multiculturalism is destructive of the very goals it wishes to affirm. If, for example, the concept of advancement based on merit is fraudulent, as the multiculturalists claim, the disproportionate success of Jews and Asians in our culture becomes difficult to explain without opening the door to age-old anti-Semitic and racist stereotypes. If historical and scientific truths are entirely relative social constructs, then Holocaust denial becomes merely a matter of perspective, and Creationism has as much "validity" as evolution. The authors go on to show that rather than promoting more dialogue, the radical multiculturalist preferences for legal storytelling and identity politics over reasoned argument produces an insular set of positions that resist open debate. Indeed, radical multiculturalists cannot critically examine each others' ideas without incurring vehement accusations of racism and sexism, much less engage in fruitful discussion with a mainstream that does not share their assumptions. Here again, Farber and Sherry show that the end result of such thinking is not freedom but a kind of totalitarianism where dissent cannot be tolerated and only the naked will to power remains to settle differences. Sharply written and brilliantly argued, this book is itself a model of the kind of clarity, civility, and dispassionate critical thinking which the authors seek to preserve from the attacks of the radical multiculturalists. With far-reaching implications for such issues as government control of hate speech and pornography, affirmative action, legal reform, and the fate of all minorities, Beyond All Reason is a provocative contribution to one of the most important controversies of our time.

Beyond All Reason: The Radical Assault on Truth in American Law

Farber, Daniel A.

Sherry, Suzanna

Ethics & Professional Responsibility

Oxford University Press

Judgement Calls tackles one of the most important and controversial legal questions in contemporary America: How should judges interpret the Constitution? Our Constitution contains a great deal of language that is vague, broad, or ambiguous, making its meaning uncertain. Many people believe this uncertainty allows judges too much discretion. They suggest that constitutional adjudication is just politics in disguise, and that judges are legislators in robes who read the Constitution in accordance with their own political views. Some think that political decision making by judges is inevitable, and others think it can be restrained by "strict constructionist" theories like textualism or originalism. But at bottom, both sorts of thinkers believe that judging has to be either tightly constrained and inflexible or purely political and unfettered: There is, they argue, no middle ground. Farber and Sherry disagree, and in this book they describe and defend that middle ground. They show how judging can be--and often is--both principled and flexible. In other words, they attempt to reconcile the democratic rule of law with the recognition that judges have discretion. They explain how judicial discretion can be exercised responsibly, describe the existing constraints that guide and cabin such discretion, and suggest improvements. In exploring how constitutional adjudication works in practice (and how it can be made better), Farber and Sherry cover a wide range of topics that are relevant to their thesis and also independently important, including judicial opinion-writing, the use of precedent, the judicial selection process, the structure of the American judiciary, and the nature of legal education. They conclude with a careful look at how the Supreme Court has treated three of the most significant and sensitive constitutional issues: terrorism, abortion, and affirmative action. Timely, trenchant, and carefully argued, Judgment Calls is a welcome addition to the literature on the intersection of constitutional interpretation and American politics.

Judgment Calls: Principle and Politics in Constitutional Law

Rules & Procedures

Irreverent, provocative, and engaging, Desperately Seeking Certainty attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. Dan Farber and Suzanna Sherry find that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. Their book brilliantly reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.

Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

Constitutional Law

University of Chicago Press

Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (Late Medieval and Early Renaissance Music in Facsimile)

Among both judges and academics, one of the hottest issues in constitutional law is the role of "original intent." Almost everyone agrees that it is important, and some scholars and judges believe it should be the most important factor in constitutional law. To think about these issues intelligently, law students need to have ready access to the historical materials so they can see how the Framers of the Constitution thought about critical issues. Yet the original source materials fill many volumes. Writings by historians also fill many bookshelves. Just as the traditional casebook selects and condenses materials from the court reports to make them useful for law students, this book does the same thing for the historical evidence of original intent. There is no other source that covers this range of materials, combined with concise overviews of the best understanding of the historical context. Only this book gives students a cogent introduction to the history behind the

A History of the American Constitution (American Casebook)

West Academic Publishing

Since the publication of the principal casebook, the Supreme Court has decided a number of significant federal jurisdiction cases, including cases involving the Eleventh Amendment, habeas corpus jurisdiction, and the relationship between state and federal courts. Current through cases issued through the end of the 2001-2002 Term.

2004 Supplement to Federal Courts, Cases, Comments and Questions, Fifth Edition (American Casebook)

Redish, Martin H.

West

Federal Courts, Cases, Comments and Questions expands the book’s coverage of two fields that have grown in importance since the last edition: the Supreme Court’s treatment of issues arising out of the War on Terror and the Guantanamo Bay detainees, and the role of international law and international judicial tribunals in domestic law. The book adds principal cases, including new Supreme Court decisions on standing, the Anti-Injunction Act, habeas corpus and the Suspension Clause, and removal jurisdiction. Additionally, Redish, Sherry, and Pfander address both Supreme Court and lower court cases on diversity jurisdiction. Many other cases, as well as the latest federal courts scholarship, have been added to the notes.

Federal Courts, Cases, Comments and Questions, 7th (American Casebook Series)

Pfander, James

Redish, Martin

Updated cases, notes, and discussion of scholarly literature. Also a new chapter on the recurring themes on judicial federalism, which covers such topics as the long-running debate on parity between the state and federal courts. Also includes judicial review, abstention, and anti-injunction issues.

Federal Courts : Cases, Comments and Questions (American Casebook Series)

West Group

Federal Courts: Cases, Comments, and Questions

The four years since the publication of the 5th edition the last years of the Rehnquist Court and the first year of the Roberts Court  have seen many changes and transitions. The Supreme Court has continued to refine or alter doctrines of federal jurisdiction, including doctrines regarding state sovereign immunity, habeas corpus, federal question jurisdiction, supplemental jurisdiction, and others. The 6th edition contains a number of new Supreme Court cases as principal cases, including Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing on federal question jurisdiction, Exxon Mobil Corp. v. Allapattah Services, Inc. on supplemental jurisdiction, and Marshall v. Marshall on the probate exception to federal jurisdiction. Many other recent cases are discussed extensively in the notes, including Nevada Dept. of Human Resources v. Hibbs, Tennessee v. Lane, and Central Virginia Community College v. Katz on state sovereign immunity, and Vieth v. Jubelirer and LULAC v. Perry on political questions. There is also a new discussion of habeas in the context of the war on terrorism. Throughout, the 6th edition maintains the core pedagogic structure and values that have characterized the book since its very first edition.

2001 Supplement to Federal Courts: Cases, Comments, and Questions (American Casebook Series and Other Coursebooks)

Administrative Law

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