The Law as it Could Be

The Law as it Could Be

by Owen Fiss


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The Law As It Could Be gathers Fiss’s most important work on procedure, adjudication and public reason, introduced by the author and including contextual introductions for each piece—some of which are among the most cited in Twentieth Century legal studies. Fiss surveys the legal terrain between the landmark cases of Brown v. Board of Education and Bush v. Gore to reclaim the legal legacy of the Civil Rights Movement. He argues forcefully for a vision of judges as instruments of public reason and of the courts as a means of shaping society in the image of the Constitution.

In building his argument, Fiss attends to topics as diverse as the use of the injunction to restructure social institutions; how law and economics have misunderstood the role of the judge; why the movement seeking alternatives to adjudication fails to serve the public interest; and why Bush v. Gore was not the constitutional crisis some would have us believe. In so doing, Fiss reveals a vision of adjudication that vindicates the public reason on which Brown v. Board of Education was founded.

Product Details

ISBN-13: 9780814727263
Publisher: New York University Press
Publication date: 10/01/2003
Pages: 287
Sales rank: 1,220,578
Product dimensions: 6.00(w) x 9.00(h) x 9.00(d)

About the Author

Owen Fiss is Sterling Profesor of Law, Yale Law School. Among his books are Liberalism Divided and The Irony of Free Speech.

Table of Contents

1 The Forms of Justice
2 The Social and Political Foundations of Adjudication
3 The Right Degree of Independence
4 The Bureaucratization of the Judiciary
5 Against Settlement
6 The Allure of Individualism
7 The Political Theory of the Class Action
8 The Awkwardness of the Criminal Law
9 Objectivity and Interpretation
10 Judging as a Practice
11 The Death of Law?
12 Reason vs. Passion
13 The Irrepressibility of Reason
14 Bush v. Gore and the Question of Legitimacy
Notes Index
About the Author

What People are Saying About This

From the Publisher

“Owen Fiss is the moral compass of legal liberalism, and these indispensable essays are his—and our—guide to true north. Against the reaction of the Rehnquist Court and academic fashions for economics, Marxism, and emotionalism, Fiss calmly makes the case for unvarnished reason as the only and best guide to law and life. The book's brilliant, pathbreaking meditations on the structure of legal institutions reveal a profound faith that law can be not only the instrument of justice, but can actually embody justice itself. Fiss’s unswerving commitment to the possibilities of reason, justice, and law is more than timely—it is essential to the very project of the law.”
-Noah Feldman,author of After Jihad: America and the Struggle for Islamic Democracy

“An uplifting book.”


“Refreshingly straightforward. Fiss writes in the style of John Marshall, sweeping the reader along with vigorous argumentation.”
-The Law and Politics Book Review

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