Losing Twice: Harms of Indifference in the Supreme Court

Hardcover | April 4, 2011

byEmily M. Calhoun

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Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Given our adversarial system, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically sufferunnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. In Losing Twice, Emily Calhoun draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, Calhoun contends, the role of judgesneeds to be reconceptualized. She contends that the Court should not perceive itself simply as an adversarial forum, but also as a 'transactional' one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss. Filled withlucid discussions of well known cases, Losing Twice offers an intellectually powerful argument for transforming the decision-making process in Constitutional rights disputes.

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Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Given our adversarial system, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically sufferunnecessary harm as a consequence of decisions. ...

Emily M. Calhoun is Professor of Law and the University of Colorado Law School. She has devoted her career to empowering and protecting the rights of individuals, was a civil rights attorney with the Southern Regional Office of the American Civil Liberties Union in the early 1970s, worked as a university administrator to ensure equalit...

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Format:HardcoverDimensions:256 pages, 9.25 × 6.12 × 0.98 inPublished:April 4, 2011Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195399749

ISBN - 13:9780195399745

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Table of Contents

Introduction: Losing Twice in Constitutional Rights Disputes1. Constitutional Stature in Rights Disputes2. Equality, Consent, and Constitutional Leadership3. Harm to Constitutional Stature in Bowers and Carhart4. Harms of Untruthfulness5. Acknowledgment of Harm6. The Art of Harm Amelioration7. Harm and Regret in Abortion Disputes8. Valuing Precedent Differently9. Losing Twice: The LotteryBibliographic Essays