普林斯顿大学出版社的三本法学新书

1. Aharon Barak, The Judge in a Democracy, Princeton University Press, 2006. 360 pp.

TABLE OF CONTENTS:

Introduction ix

PART ONE: THE ROLE OF THE JUDGE 1

Chapter One: Bridging the Gap between Law and Society 3
Law and Society 3
Changes in Legislation and in Its Interpretation 4
Changes in Society Affecting the Constitutionality of Statutes 8
Changes in the Common Law 10
Change and Stability 11

Chapter Two: Protecting the Constitution and Democracy 20
The Struggle for Democracy 20
What Is Democracy? 23
The Separation of Powers 35
Democracy and the Rule of Law 51
Fundamental Principles 57
Independence of the Judiciary 76
Human Rights 81
Criticism and Response 88

PART TWO: THE MEANS OF REALIZING THE JUDICIAL ROLE 99

Chapter Three: Preconditions for Realizing the Judicial Role 101
Judicial Impartiality and Objectivity 101
Social Consensus 107
Public Confidence 109

Chapter Four: The Meaning of Means 113
The Legitimacy of the Means 113
Operative Legal Theory 113
Judicial Philosophy 116

Chapter Five: Interpretation 122
The Essence of Interpretation 122
Purposive Interpretation 125
Purposive Interpretation of a Constitution 127
Purposive Interpretation of Statutes 136
Purposive Interpretation and Judicial Discretion 146
Purposive Interpretation and Intentionalism (or Subjective Purpose) 148
Purposive Interpretation and Old Textualism 149
Purposive Interpretation and New Textualism 152

Chapter Six: The Development of the Common Law 155
The Common Law as Judge-Made Law 155
Judicial Lawmaking 157
Overruling Precedent 158

Chapter Seven: Balancing and Weighing 164
The Centrality of Balancing and Weighing 164
Balancing and Categorization 166
The Nature of Balancing 167
Types of Balancing 170
The Advantages of Balancing 172
Critique of Balancing and Response 174
The Scope of the Balancing 175

Chapter Eight: Non-Justiciability, or “Political Questions” 177
The Role and Limits of Justiciability 177
Types of Justiciability 178
Justiciability and Public Confidence 186

Chapter Nine: Standing 190
Standing and Adjudication 190
Standing and Substantive Democracy 194

Chapter Ten: Comparative Law 197
The Importance of Comparative Law 197
The Influence of Comparative Law 198
Comparative Law and Interpretation of Statutes 199
Comparative Law and Interpretation of the Constitution 200
Use of Comparative Law in Practice 202

Chapter Eleven: The Judgment 205
Formulating the Judgment and Realizing the Judicial Role 205
The Judge as Part of the Panel 208

PART THREE: THE RELATIONSHIP BETWEEN THE COURT AND THE OTHER BRANCHES OF THE STATE 213

Chapter Twelve: Tension among the Branches 215
Constant Tension 215
The Tension Is Natural and Desirable 216
The Attitude toward the State 217
Public Officials as Trustees 220
Duties of the Individual toward the State 222

Chapter Thirteen: The Relationship between the Judiciary and the Legislature 226
The Uniqueness of the Legislature 226
Judicial Review of Legislation 229
Judicial Review of Nonlegislative Decisions of the Legislature 231
The Dialogue between the Judiciary and the Legislature 236

Chapter Fourteen: The Relationship between the Judiciary and the Executive 241
The Scope of Review 241
Judicial Interpretation and Executive Interpretation 246
Executive Reasonableness 248
Proportionality 254

PART FOUR: EVALUATION OF THE ROLE OF A JUDGE IN A DEMOCRACY 261

Chapter Fifteen: Activism and Self-Restraint 263
Definition of the Terms 263
Some Definitions and Their Critiques 267
Definition of Activism and Self-Restraint 270
The Desirability of Activism or Self-Restraint 279

Chapter Sixteen: The Judicial Role and the Problem of Terrorism 283
Terrorism and Democracy 283
In Battle, the Laws Are Not Silent 287
The Balance between National Security and Human Rights 291
Scope of Judicial Review 298

Chapter Seventeen: The Role of the Judge: Theory, Practice, and the Future 306
Theory 306
Reality 310
The Future 310

Index 317

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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.
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2. Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior, Princeton University Press, 2006. 256 pp.

TABLE OF CONTENTS:

List of Tables ix
Preface xi
Acknowledgments xiii

Chapter 1: Thinking about Judicial Behavior 1
Models of Judicial Behavior 5
Shared Assumptions: The Judge as Mr. Spock 9
Limitations of the Dominant Models 19
Audience as a Perspective 21

Chapter 2: Judging as Self-Presentation 25
People and Their Audiences 25
Judicial Self-Presentation: A First Look 32
Audiences and Judicial Behavior 43

Chapter 3: Court Colleagues, the Public, and the Other Branches of Government 50
Court Colleagues 50
The General Public 60
The Other Branches 72
Conclusions 85

Chapter 4: Social and Professional Groups 88
Social Groups 88
Professional Groups: Lawyers and Judges 97
Conclusions 116

Chapter 5: Policy Groups, the News Media, and the Greenhouse Effect 118
Policy Groups 118
The News Media 135
A Greenhouse Effect? 139
Conclusions 155
Appendix: Procedures for Analysis of Voting Change by Supreme Court Justices 155

Chapter 6: Implications for the Study of Judicial Behavior 158
Motivational Bases for the Dominant Models 158
Departures from the Dominant Models 162
Probing the Impact of Judicial Audiences 171
Some Final Thoughts 174

References 177
Name Index 221
Subject and Case Index 229

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What motivates judges as decision makers? Political scientist Lawrence Baum offers a new perspective on this crucial question, a perspective based on judges’ interest in the approval of audiences important to them.

The conventional scholarly wisdom holds that judges on higher courts seek only to make good law, good policy, or both. In these theories, judges are influenced by other people only in limited ways, in consequence of their legal and policy goals. In contrast, Baum argues that the influence of judges’ audiences is pervasive. This influence derives from judges’ interest in popularity and respect, a motivation central to most people. Judges care about the regard of audiences because they like that regard in itself, not just as a means to other ends. Judges and Their Audiences uses research in social psychology to make the case that audiences shape judges’ choices in substantial ways. Drawing on a broad range of scholarship on judicial decision-making and an array of empirical evidence, the book then analyzes the potential and actual impact of several audiences, including the public, other branches of government, court colleagues, the legal profession, and judges’ social peers.

Engagingly written, this book provides a deeper understanding of key issues concerning judicial behavior on which scholars disagree, identifies aspects of judicial behavior that diverge from the assumptions of existing models, and shows how those models can be strengthened.
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3. Lawrence Rosen, Law as Culture: An Invitation, Princeton University Press, 2006. 230 pp.

TABLE OF CONTENTS:

List of Illustrations ix
Preface xi
Introduction 1
CHAPTER 1: Law and Social Control 14
CHAPTER 2: Creating Facts 68
CHAPTER 3: Reason, Power, Law 131
CHAPTER 4: Law as Cosmology 169
Conclusion 198
Further Reading 201
Index 213

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Law is integral to culture, and culture to law. Often considered a distinctive domain with strange rules and stranger language, law is actually part of a culture’s way of expressing its sense of the order of things. In Law as Culture, Lawrence Rosen invites readers to consider how the facts that are adduced in a legal forum connect to the ways in which facts are constructed in other areas of everyday life, how the processes of legal decision-making partake of the logic by which the culture as a whole is put together, and how courts, mediators, or social pressures fashion a sense of the world as consistent with common sense and social identity.

While the book explores issues comparatively, in each instance it relates them to contemporary Western experience. The development of the jury and Continental legal proceedings thus becomes a story of the development of Western ideas of the person and time; African mediation techniques become tests for the style and success of similar efforts in America and Europe; the assertion that one’s culture should be considered as an excuse for a crime becomes a challenge to the relation of cultural norms and cultural diversity.

Throughout the book, the reader is invited to approach law afresh, as a realm that is integral to every culture and as a window into the nature of culture itself.