Regulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law

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University of Chicago Press, Sep 15, 2008 - Political Science - 256 pages
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We often hear—with particular frequency during recent Supreme Court nomination hearings—that justices should not create constitutional rights, but should instead enforce the rights that the Constitution enshrines. In Regulatory Rights, Larry Yackle sets out to convince readers that such arguments fundamentally misconceive both the work that justices do and the character of the American Constitution in whose name they do it.  It matters who sits on the Supreme Court, he argues, precisely because justices do create individual constitutional rights.

Traversing a wide range of Supreme Court decisions that established crucial precedents about racial discrimination, the death penalty, and sexual freedom, Yackle contends that the rights we enjoy are neither more nor less than what the justices choose to make of them. Regulatory Rights is a bracing read that will be heatedly debated by all those interested in constitutional law and the judiciary.
 

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Contents

Introduction
1
1 The Documentary Constitution
11
2 Constitutional Common Law
52
3 Regulatory Rights
83
4 Rational Instrumentalism
125
Conclusion
172
Notes
175
Index
253
Copyright

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About the author (2008)

Larry Yackle is professor of law and the Basil Yanakakis Research Scholar at Boston University School of Law. He is the author of several books, including Reclaiming the Federal Courts and Reform and Regret.    
 

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