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The book presents a unique and controversial rethinking of the intersection between modern American democratic theory and free expression. Most free speech scholars view freedom of expression as a vehicle for fostering democracy. However, most do so by relying upon communitarian, cooperative or collectivist democratic theories. This book reshapes free speech as an outgrowth of adversary democracy, arguing that individuals should have the opportunity to affect the outcomes of collective decision-making according to their own personal values and interests. Adversary democracy recognizes the inevitability of conflict within a democratic society, as well as the need for regulation of the conflict to prevent the onset of tyranny. In doing so, it embraces pluralism, diversity and individual growth and development

Public recognition of religion has been a part of American political life from the country's beginning, and that is not going to change. But in recent years, the effort by some to challenge the long held separation of church and state by imposing religion in the public sphere has caused more harm than good. Along the lines of other incredulous “neo-Enlightenment” books, this book makes a case that the gravest threat to real faith comes from those who would water down religion in order to win the dubious honor of forcing it into public buildings and classrooms. The freedom of religion enjoyed in the United States, both as a matter of law and practice, is extraordinary by any measure. However, when American courts allow the government to insert religious symbolism in public spaces, real religion is the loser. The author argues that people on both sides of this debate should resist this corruption of religion. The book provides a survey of the legal and political environment in which battles over the public display of the Ten Commandments, the teaching of intelligent design in our schools, and the celebration of religious holidays take place. The author firmly maintains that, “if American religion becomes a watered-down broth that is indistinguishable from consumerism and science, we will have no one to blame but ourselves”.

Bush v. Gore brought to the public's attention the significance of election law and the United States Supreme Court's role in structuring the rules that govern how campaigns and elections function in America. This book examines one expanding domain within this larger legal context: freedom of speech in the political process, or electoral speech law. Specifically, the author examines the Court's evolving conceptions of free speech in the electoral process and then traces the consequences of various debates and determinations from the post-World War II era to the present. In his analysis of the broad range of cases from this period, supplemented by four recent case study investigations, he explores competing visions of electoral expression in the marketplace of ideas, various methods for analyzing speech dilemmas, the multiple influences that shape the justices' notions of both the potential for and privileged status of electoral communication, and the ultimate implications of these Court rulings for American democracy.

Law depends on various modes of classification. How an act or a person is classified may be crucial in determining the rights obtained, the procedures employed, and what understandings get attached to the act or person. Critiques of law often reveal how arbitrary its classificatory acts are, but no one doubts their power and consequence. This book considers the problem of law's physical control of persons and the ways in which this control illuminates competing visions of the law: as both a tool of regulation and an instrument of coercion or punishment. It examines various instances of punishment and regulation to illustrate points of overlap and difference between them, and captures the lived experience of the state's enterprise of subjecting human conduct to the governance of rules. Ultimately, the chapters call into question the adequacy of a view of punishment and/or regulation that neglects the perspectives of those who are at the receiving end of these exercises of state power.

This book offers original readings of the ideal of colorblindness in canonical cases to the critical study of race and law. It does this by deconstructing and tracing colorblindness as a fantasmatic core around which law enforces classic principles of American democracy – including, equal protection, citizenship, personal privacy, and freedom of expression. This fantasmatic core, variously materialized in the formal literary structure of universal legal reason, reveals how racial slavery continues to haunt American democracy. This reading of colorblindness critically revises current debates that generally take the contemporary “post-civil rights” moment as an incontrovertible sign of colorblindness’s hegemony. Arguing that colorblindness is more than the law’s failed recognitions of the social reality of racial inequality, or a structure of the law’s formal function as objective arbiter of political struggles, the book moves beyond these constructivist and historicist discussions to explore colorblindness as the symptomatic production of law around the Real of racial slavery and black freedom struggle. Opening up a space to encounter the many instances of the continued arrival of the Real of race in law’s language, this book argues that the black radical tradition’s questions of abolition and freedom continue to be essential for developing a critical knowledge of race and law.

This book discusses how the U.S. Supreme Court typically rules on cases that present complex legal questions. Given the challenging nature of its cases and the popular view that the Court is divided along ideological lines, it's commonly assumed that the Court routinely hands down equally-divided decisions. Yet the justices actually issue unanimous decisions in approximately one third of the cases they decide. Drawing on data from the U.S. Supreme Court database, internal court documents, and the justices' private papers, this book provides the first comprehensive account of how the Court reaches consensus. This book proposes and empirically tests a theory of consensus; the authors find consensus is a function of multiple, concurrently-operating forces that cannot be fully accounted for by ideological attitudes. In this thorough investigation, the authors conclude that consensus is a function of the level of legal certainty and its ability to constrain justices' ideological preferences.