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Authors and Owners
The Invention of Copyright
Mark Rose
Harvard University Press, 1995
The notion of the author as the creator and therefore the first owner of a work is deeply rooted both in our economic system and in our concept of the individual. But this concept of authorship is modern. Mark Rose traces the formation of copyright in eighteenth-century Britain—and in the process highlights still current issues of intellectual property. Authors and Owners is at once a fascinating look at an important episode in legal history and a significant contribution to literary and cultural history.
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Changing Unjust Laws Justly
Pro-Life Solidarity with "The Last and Least"
Colin Harte
Catholic University of America Press, 2005
Changing Unjust Laws Justly is the first book to address systematically the practical, legal, and ethical problems that are encountered in well-intentioned attempts to restrict abortion. It will be of considerable interest not only to political, legal, and moral philosophers, but also to lawmakers and the pro-life movement generally.
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Beyond Control
Medical Power and Abortion Law
Sally Sheldon
Pluto Press, 1997

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Regulating Football
Commodification, Consumption and the Law
Steve Greenfield and Guy Osborn
Pluto Press, 2001

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Magna Carta
history, context and influence: Papers delivered at Peking University on the 800th anniversary of Magna Carta
Edited by Lawrence Goldman
University of London Press, 2018
This book examines the history and influence of Magna Carta in British and American history. In a series of essays written by notable British specialists, it considers the origins of the document in the political and religious contexts of the thirteenth century, the relevance of its principles to the seventeenth century disputes that led to the Civil War, the uses made of Magna Carta to justify the American Revolution, and its inspiration of the radical-democratic movement in Britain in the early nineteenth century. The introductory essay considers the celebration of Magna Carta's 800th anniversary in 2015 in relation to ceremonials and remembrance in Britain in general. Given as papers to a joint conference of British and Chinese historians in Beijing in 2015, these essays provide a clear and insightful overview of the origins and impact of a medieval document that has shaped the history of the world.   The open access edition of this book can be found at http://humanities-digital-library.org/index.php/hdl/catalog/book/goldman.
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Rage for Order
The British Empire and the Origins of International Law, 1800–1850
Lauren Benton and Lisa Ford
Harvard University Press, 2016

International law burst on the scene as a new field in the late nineteenth century. Where did it come from? Rage for Order finds the origins of international law in empires—especially in the British Empire’s sprawling efforts to refashion the imperial constitution and use it to order the world in the early part of that century.

Rage for Order is a book of exceptional range and insight. Its successes are numerous. At a time when questions of law and legalism are attracting more and more attention from historians of 19th-century Britain and its empire, but still tend to be considered within very specific contexts, its sweep and ambition are particularly welcome…Rage for Order is a book that deserves to have major implications both for international legal history, and for the history of modern imperialism.”
—Alex Middleton, Reviews in History

Rage for Order offers a fresh account of nineteenth-century global order that takes us beyond worn liberal and post-colonial narratives into a new and more adventurous terrain.”
—Jens Bartelson, Australian Historical Studies

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The Power of Judges
David Neuberger and Peter Riddell
Haus Publishing, 2018
To the vast majority of the English public, the role of the United Kingdom’s Supreme Court has often been distant and incomprehensible, its judges a caste apart from society. The Power of Judges ends this mystery, exploring the fundamental concept of justice and explaining the main functions of the courts, the challenges they face, and the complexity of the judicial system.

In this lucid account of the judiciary, David Neuberger and Peter Riddell lead us through an array of topics both philosophical and logistical, including the relationships between morality and law and between Parliament and the judiciary. They explain the effects of cuts in legal aid and shed light on complex and controversial subjects like assisted dying and the complexities of combating mass terrorism while protecting personal liberty. Given that many of these issues span national borders, the book also compares the United Kingdom’s legal system with its counterparts in the United States and Germany.

Full of insights, The Power of Judges is an informative and accessible account of the United Kingdom’s judicial system, its contribution to running the country, and the challenges it faces—including the many threats to its effectiveness.
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Laws of Men and Laws of Nature
The History of Scientific Expert Testimony in England and America
Tal Golan
Harvard University Press, 2004
Are scientific expert witnesses partisans, or spokesmen for objective science? This ambiguity has troubled the relations between scientists and the legal system for more than 200 years. Modern expert testimony first appeared in the late eighteenth century, and while its use steadily increased throughout the nineteenth century, in cases involving everything from patents to X-rays, the respect paid to it steadily declined, inside and outside of the courtroom. With deep learning and wry humor, Tal Golan tells stories of courtroom drama and confusion and media jeering on both sides of the Atlantic, until the start of the twenty-first century, as the courts still search for ways that will allow them to distinguish between good and bad science.
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The Law of the Other
The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge
Marianne Constable
University of Chicago Press, 1994
The Law of the Other is an account of the English doctrine of the "mixed jury". Constable's excavation of the historical, rhetorical, and theoretical foundations of modern law recasts our legal and sociological understandings of the American jury and our contemporary conceptions of law, citizenship, and truth.

The "mixed jury" doctrine allowed resident foreigners to have law suits against English natives tried before juries composed half of natives and half of aliens like themselves. As she traces the transformations in this doctrine from the Middle Ages to its abolition in 1870, Constable also reveals the emergence of a world where law rooted in actual practices and customs of communities is replaced by law determined by officials, where juries no longer strive to speak the truth but to ascertain the facts.
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Habeas Corpus
From England to Empire
Paul D. Halliday
Harvard University Press, 2012

We call habeas corpus the Great Writ of Liberty. But it was actually a writ of power. In a work based on an unprecedented study of thousands of cases across more than five hundred years, Paul Halliday provides a sweeping revisionist account of the world’s most revered legal device.

In the decades around 1600, English judges used ideas about royal power to empower themselves to protect the king’s subjects. The key was not the prisoner’s “right” to “liberty”—these are modern idioms—but the possible wrongs committed by a jailer or anyone who ordered a prisoner detained. This focus on wrongs gave the writ the force necessary to protect ideas about rights as they developed outside of law. This judicial power carried the writ across the world, from Quebec to Bengal. Paradoxically, the representative impulse, most often expressed through legislative action, did more to undermine the writ than anything else. And the need to control imperial subjects would increasingly constrain judges. The imperial experience is thus crucial for making sense of the broader sweep of the writ’s history and of English law.

Halliday’s work informed the 2008 U.S. Supreme Court ruling in Boumediene v. Bush on prisoners in the Guantánamo detention camps. His eagerly anticipated book is certain to be acclaimed the definitive history of habeas corpus.

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"Beyond the Law"
The Politics of Ending the Death Penalty for Sodomy in Britain
Charles Upchurch
Temple University Press, 2021

In nineteenth-century England, sodomy was punishable by death; even an accusation could damage a man’s reputation for life. The last executions for this private, consensual act were in 1835, but the effort to change the law that allowed for those executions was intense and precarious, and not successful until 1861. In this groundbreaking book, “Beyond the Law,” noted historian Charles Upchurch pieces together fragments from history and uses a queer history methodology to recount the untold story of the political process through which the law allowing for the death penalty for sodomy was almost ended in 1841.

Upchurch recounts the legal and political efforts of reformers like Jeremy Bentham and Lord John Russell—the latter of whom argued that the death penalty for sodomy was “beyond the law and above the law.” He also reveals that a same-sex relationship linked the families of the two men responsible for co-sponsoring the key legislation. By recovering the various ethical, religious, and humanitarian arguments against punishing sodomy, “Beyond the Law” overturns longstanding assumptions of nineteenth-century British history. Upchurch demonstrates that social change came from an amalgam of reformist momentum, family affection, elitist politics, class privilege, enlightenment philosophy, and personal desires.

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Star Chamber Matters
The Court and Its Records
Edited by Natalie Mears and Krista Kesselring
University of London Press, 2021
A comprehensive historical study into the birth of the law and legal courts in early modern Britain.
 
Star Chamber Matters details some of the fascinating, tragic, and startling cases brought before the Star Chamber, an English court that sat at the Royal Palace of Westminster from the late fifteenth century to the mid-seventeenth century. Through close examination of the breadth and depth of cases brought before the court in its day, readers will experience the trials and tribulations of life, love, and death in Tudor Britain. These cases touch on changing gender roles, shifting religious views, and more. Star Chamber Matters witnesses the birth of English common and civil law as we know it today.
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The Privilege against Self-Incrimination
Its Origins and Development
R. H. Helmholz, Charles M. Gray, John H. Langbein, Eben Moglen, Henry E. Smith,
University of Chicago Press, 1997
Challenging the accounts of John Henry Wigmore and Leonard W. Levy, this history of the privilege against self-incrimination demonstrates that what has sometimes been taken to be an unchanging tenet of our legal system has actually encompassed many different legal consequences in a history that reaches back to the Middle Ages.

Each chapter of this definitive study uncovers what the privilege meant in practice. The authors trace the privilege from its origins in the medieval period to its first appearance in English common law, and from its translation to the American colonies to its development into an effective protection for criminal defendants in the nineteenth century. The authors show that the modern privilege—the right to remain silent—is far from being a basic civil liberty. Rather, it has evolved through halting and controversial steps. The book also questions how well an expansive notion of the privilege accords with commonly accepted principles of morality.

This book constitutes a major revision of our understanding of an important aspect of both criminal and constitutional law.
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Verdict According to Conscience
Perspectives on the English Criminal Trial Jury, 1200-1800
Thomas Andrew Green
University of Chicago Press, 1985

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Criminal-Inquisitorial Trials in English Church Trials
From the Middle Ages to the Reformation
Henry Ansgar Kelly
Catholic University of America Press, 2023
After inquisitorial procedure was introduced at the Fourth Lateran Council in Rome in 1215 (the same year as England’s first Magna Carta), virtually all court trials initiated by bishops and their subordinates were inquisitions. That meant that accusers were no longer needed. Rather, the judges themselves leveled charges against persons when they were publicly suspected of specific offenses—like fornication, or witchcraft, or simony. Secret crimes were off limits, including sins of thought (like holding a heretical belief). Defendants were allowed full defenses if they denied charges. These canonical rules were systematically violated by heresy inquisitors in France and elsewhere, especially by forcing self-incrimination. But in England, due process was generally honored and the rights of defendants preserved, though with notable exceptions. In this book, Henry Ansgar Kelly, a noted forensic historian, describes the reception and application of inquisition in England from the thirteenth century onwards and analyzes all levels of trial proceedings, both minor and major, from accusations of sexual offenses and cheating on tithes to matters of religious dissent. He covers the trials of the Knights Templar early in the fourteenth century and the prosecutions of followers of John Wyclif at the end of the century. He details how the alleged crimes of “criminous clerics” were handled, and demonstrates that the judicial actions concerning Henry VIII’s marriages were inquisitions in which the king himself and his queens were defendants. Trials of Alice Kyteler, Margery Kempe, Eleanor Cobham, and Anne Askew are explained, as are the unjust trials condemning Bishop Reginald Pecock of error and heresy (1457-59) and Richard Hunne for defending English Bibles (1514). He deals with the trials of Lutheran dissidents at the time of Thomas More’s chancellorship, and trials of bishops under Edward VI and Queen Mary, including those against Stephen Gardiner and Thomas Cranmer. Under Queen Elizabeth, Kelly shows, there was a return to the letter of papal canon law (which was not true of the papal curia). In his conclusion he responds to the strictures of Sir John Baker against inquisitorial procedure, and argues that it compares favorably to the common-law trial by jury.
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Labor Justice across the Americas
Leon Fink, Juan Palacio
University of Illinois Press, 2018
Opinions of specialized labor courts differ, but labor justice undoubtedly represented a decisive moment in worker 's history. When and how did these courts take shape? Why did their originators consider them necessary? Leon Fink and Juan Manuel Palacio present essays that address these essential questions. Ranging from Canada and the United States to Chile and Argentina, the authors search for common factors in the appearance of labor courts while recognizing the specific character of the creative process in each nation. Their transnational and comparative approach advances a global perspective on the various mechanisms for regulating industrial relations and resolving labor conflicts. The result is the first country-by-country study of its kind, one that addresses a defining shift in law in the first half of the twentieth century. Contributors: Rossana Barragán Romano, Angela de Castro Gomes, David Díaz-Arias, Leon Fink, Frank Luce, Diego Ortúzar, Germán Palacio, Juan Manuel Palacio, William Suarez-Potts, Fernando Teixeira da Silva, Victor Uribe-Urán, Angela Vergara, and Ronny J. Viales-Hurtado.
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The Columbia River Treaty Revisited
Transboundary River Governance in the Face of Uncertainty
Edited by Barbara Cosens
Oregon State University Press, 2012
The Columbia River Treaty, concluded in 1961 and ratified in 1964, split hydropower and flood control regulation of the river between Canada and the United States. Some of its provisions will expire in 2024, and either country must give ten years’ notice of any desired alteration or termination.

The Columbia River Treaty Revisited, with contributions from historians, geographers, environmental scientists, and other experts, is intended to facilitate conversation about the impending expiration. It allows the reader, through the close inspection of the Columbia River Basin, to better grasp the uncertainty of water governance. It aids efforts, already underway, to understand changes in the basin since the treaty was passed, to predict future changes, and to determine whether alteration of the treaty is ultimately advisable.

The Columbia River Treaty Revisited will appeal to those interested in water basin management–scholars, stakeholders, and residents of the Columbia River basin alike.

A Project of the Universities Consoritum on Columbia River Governance
The Universities Consortium on Columbia River Governance, with representatives from universities in the U.S. and Canada, formed to offer a nonpartisan platform to facilitate an informed, inclusive, international dialogue among key decision-makers and other interested people and organizations; to connect university research to problems faced within the basin; and to expose students to a complex water resources problem. The Consortium organized the symposium on which this volume is based.
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Is NAFTA Constitutional?
Bruce Ackerman and David Golove
Harvard University Press, 1995

By a vote of 61 to 38, the Senate joined the House in declaring that "Congress approves...the North American Free Trade Agreement." The vote was virtually unnoticed, since the real battle over NAFTA was in the House. But there is a puzzle here. The President, the Framers assure us, "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Whatever happened to the Treaty Clause?

Bruce Ackerman and David Golove tell the story of the Treaty Clause's being displaced in the twentieth century by a modern procedure in which the House of Representatives joins the Senate in the process of consideration, but simple majorities in both Houses suffice to commit the nation. This is called the Congressional-Executive Agreement, and is a response to a sea change in public opinion during and after World War II.

This agreement substituted for a failed constitutional amendment that would have required all treaties to be approved by majorities in both Houses rather than by two-thirds of the Senate. The modern Congressional-Executive Agreement was self-consciously developed in order to make formal constitutional amendment unnecessary. So, is NAFTA constitutional?

This book is reprinted from the Harvard Law Review.

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Criminalized Lives
HIV and Legal Violence
Alexander McClelland
Rutgers University Press, 2024
Canada has been known as a hot spot for HIV criminalization where the act of not disclosing one’s HIV-positive status to sex partners has historically been regarded as a serious criminal offence. Criminalized Lives describes how this approach has disproportionately harmed the poor, Black and Indigenous people, gay men, and women in Canada. In this book, people who have been criminally accused of not disclosing their HIV-positive status, detail the many complexities of disclosure, and the violence that results from being criminalized. 
 
Accompanied by portraits from artist Eric Kostiuk Williams, the profiles examine whether the criminal legal system is really prepared to handle the nuances and ethical dilemmas faced everyday by people living with HIV. By offering personal stories of people who have faced criminalization first-hand, Alexander McClelland questions common assumptions about HIV, the role of punishment, and the violence that results from the criminal legal system’s legacy of categorizing people as either victims or perpetrators. 
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Daniels v. Canada
In and Beyond the Courts
Nathalie Kermoal
University of Manitoba Press, 2021

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The Conscience of the Court
Selected Opinions of Justice William J. Brennan Jr. on Freedom and Equality
Edited by Stephen L. Sepinuck and Mary Pat Treuthart
Southern Illinois University Press, 1999

The Conscience of the Court celebrates the work of Justice William J. Brennan Jr., who served on the United States Supreme Court for thirty-four years (1956–1990).

Stephen L. Sepinuck and Mary Pat Treuthart introduce and present selected judicial opinions written by Justice Brennan on issues involving personal freedom, civil liberties, and equality. Brennan is ranked by many as the best writer ever to have served on the Supreme Court, and his written opinions depict real people, often in desperate, emotional situations. Remarkable for their clarity of analysis, for their eloquence, and for their forcefulness and persuasiveness, his opinions demonstrate that judicial thought need not be a proprietary enclave of lawyers or the intellectual elite.

The extended excerpts selected by Sepinuck and Treuthart highlight Brennan's approach to judicial decision making. Concerned always with how each decision would actually affect people's lives, Brennan possessed a rare quality of empathy. In Brennan, the editors note, "people and groups who lacked influence in society—Communists and flag burners, children and foreigners, criminal defendants and racial minorities"—found a champion they could count on "to listen to their causes and judge them unmoved by the passions of the politically powerful."

In their introduction to each opinion, the editors provide background facts, discuss how the excerpted opinion transformed the law or otherwise fit into the realm of constitutional jurisprudence, and delve into Justice Brennan's judicial philosophy, his method of constitutional interpretation, and the language he used.

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Narrative, Violence, and the Law
The Essays of Robert Cover
Martha Minow, Michael Ryan, and Austin Sarat, Editors
University of Michigan Press, 1995
"Bob Cover was and remains the dominant voice of his generation among legal scholars. These essays, each one magnificent in itself, are, when taken together, even more important. The wisdom they impart is forever." --Guido Calabresi, Dean and Sterling Professor of Law, Yale University
"Robert Cover drew his sources for the authority of law--for its violence, but also for its paideic potential--from the structuring stories that spark our communal imaginations. Literally until the day of his untimely death, his irreplaceably restless spirit was binding itself with the pages of the Midrash, of The Brothers Karamazov, of Billy Budd, Sailor. It is for us now to work also with these--Bob Cover's stories."--Richard Weisberg, Benjamin N. Cardozo Law School, Yeshiva University
"The writings of Robert Cover were usually provocative, sometimes exasperating, but always relevant. In his last years, he concentrated on Jewish sources as well as mystical and Messianic thought. This collection of his articles is a thesaurus of some of his finest writings."--Robert F. Drinan, S.J., Georgetown University Law Center
The late Robert Cover was Professor of Law, Yale Law School. Martha Minow is Professor of Law, Harvard Law School. Michael Ryan is Professor of English, Northeastern University. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Chair of the Program in Law, Jurisprudence, and Social Thought, Amherst College.
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Closing Arguments
Clarence Darrow on Religion, Law, and Society
Clarence Darrow
Ohio University Press, 2005

Clarence Darrow, son of a village undertaker and coffinmaker, rose to become one of America’s greatest attorneys—and surely its most famous. The Ohio native gained renown for his central role in momentous trials, including his 1924 defense of Leopold and Loeb and his defense of Darwinian principles in the 1925 Scopes “Monkey Trial.” Some have traced Darrow’s lifelong campaign against capital punishment to his boyhood terror at seeing a Civil War soldier buried—and no client of Darrow’s was ever executed, not even black men who were accused of murder for killing members of a white mob.

Closing Arguments: Clarence Darrow on Religion, Law, and Society collects, for the first time, Darrow’s thoughts on his three main preoccupations, revealing a carefully conceived philosophy expressed with delightful pungency and clarity. His thoughts on social issues, especially on the dangers of religious fundamentalism, are uncannily prescient. A dry humor infuses his essays, and his reflections on himself and his philosophy reveal a quiet dignity at the core of a man better known for provoking Americans during an era of unprecedented tumult. From the wry “Is the Human Race Getting Anywhere?” to the scornful “Patriotism” and his elegiac summing up, “At Seventy-two,” Darrow’s writing still stimulates, pleases and challenges.

A rebel who always sided intellectually and emotionally with the minority, Darrow remains a figure to contend with sixty-seven years after his death. “Inside every lawyer is the wreck of a poet,” Darrow once said. Closing Arguments demonstrates that, in his case, that statement is true.

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Attorney for the Damned
Clarence Darrow in the Courtroom
Clarence Darrow
University of Chicago Press, 2012
A famous defender of the underdog, the oppressed, and the powerless, Clarence Darrow (1857–1938) is one of the true legends of the American legal system. His cases were many and various, but all were marked by his unequivocal sense of justice, as well as his penchant for representing infamous and unpopular clients, such as the Chicago thrill killers Leopold and Loeb; Ossian Sweet, the African American doctor charged with murder after fighting off a violent, white mob in Detroit; and John T. Scopes, the teacher on trial in the famous Scopes Monkey Trial.
Published for the first time in 1957, Attorney for the Damned collects Darrow’s most influential summations and supplements them with scene-setting explanations and comprehensive notes by Arthur Weinberg. Darrow confronts issues that remain relevant over half a century after his death: First Amendment rights, capital punishment, and the separation of church and state. With an insightful forward by Justice William O. Douglas, this volume serves as a powerful reminder of Darrow’s relevance today.

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Felix Frankfurter on the Supreme Court
Extrajudicial Essays on the Court and the Constitution
Felix Frankfurter
Harvard University Press, 1970
The present volume, a selection of Frankfurter's extrajudicial nontechnical writings on the Supreme Court, its Justices, and its business, includes fifty-four pieces written between 1913 and 1956 and originally published in popular or scholarly journals. These essays serve to reinforce Frankfurter's stature as a truly just and concerned individual; and their chronological arrangement reveals the consistency of his views on the proper role of the Court.
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The Evolution of a Judicial Philosophy
Selected Opinions and Papers of Justice John M. Harlan
John M. Harlan
Harvard University Press, 1969

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Sexy Dressing Etc.
Duncan Kennedy
Harvard University Press, 1993
Duncan Kennedy argues that an American radicalism is both possible and desirable. One base for radical politics is the big institutional workplace; another is popular culture—whence his emphasis on phenomena like sexy dressing. Kennedy’s aim is to wed the rebelliousness, irony, and irrationalism of cultural modernism and postmodernism to the earnestness of political correctness.
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Restoring Justice
The Speeches of Attorney General Edward H. Levi
Edward H. Levi
University of Chicago Press, 2013
In the wake of Watergate, Gerald Ford appointed eminent lawyer and scholar Edward H. Levi to the post of attorney general—and thus gave him the onerous task of restoring legitimacy to a discredited Department of Justice. Levi was famously fair-minded and free of political baggage, and his inspired addresses during this tumultuous time were critical to rebuilding national trust. They reassured a tense and troubled nation that the Department of Justice would act in accordance with the principles underlying its name, operating as a nonpartisan organization under the strict rule of law.

For Restoring Justice, Jack Fuller has carefully chosen from among Levi’s speeches a selection that sets out the attorney general’s view of the considerable challenges he faced: restoring public confidence through discussion and acts of justice, combating the corrosive skepticism of the time, and ensuring that the executive branch would behave judicially. Also included are addresses and Congressional testimonies that speak to issues that were hotly debated at the time, including electronic surveillance, executive privilege, separation of powers, antitrust enforcement, and the guidelines governing the FBI—many of which remain relevant today.         
          
Serving at an almost unprecedentedly difficult time, Levi was among the most admired attorney generals of the modern era. Published here for the first time, the speeches in Restoring Justice offer a superb sense of the man and his work.

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A Voice for Justice
Writings of David Schuman
Sharon Schuman
Oregon State University Press, 2021
As an educator, speaker, deputy attorney general, and judge, David Schuman was known for his ability to clarify difficult legal concepts. According to James Egan, chief judge of the Oregon Court of Appeals, he was the “intellectual giant of our generation.” A Voice for Justice reveals how David Schuman’s unique jurisprudence came to be.

His friends and associates knew that Oregon Supreme Court Justice Hans Linde convinced Schuman to turn to the Oregon Constitution rather than the federal one to protect individual rights. But even some of Schuman’s closest friends were unaware of his fiction, which provides a window into his deep capacity for empathy and casts new light on his ability to write elegant, sometimes funny, judicial opinions. His legal thinking also had deep roots in literature and political theory.
         
Schuman’s 672 judicial opinions are not just brilliant, but written so that anyone can understand them. Like Ruth Bader Ginsburg, he knew there was nothing to gain by communicating only to specialists. He wanted citizens to be able to make up their own minds about important issues.
         
A Voice for Justice brings together for the first time writings that span over fifty years. Lawyers and laypeople alike will appreciate Schuman’s lucid, engaging observations, which are highly relevant to our current anxieties about institutional racism and democracy under stress. The short stories, speeches, op-eds, articles, legal opinions, and dissents selected for this volume constitute a call to action for everyone to become voices for justice.

 
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Courting Justice
Ten New Jersey Cases That Shook the Nation
Edited by Paul L. Tractenberg with a Foreword by Deborah T. Poritz
Rutgers University Press, 2013
Since 1947 a modernized New Jersey Supreme Court has played an important and controversial role in the state, nation, and world.  Its decisions in cutting-edge cases have confronted society’s toughest issues, reflecting changing social attitudes, modern life’s complexities, and new technologies.

Paul Tractenberg has selected ten of the court’s landmark decisions between 1960 and 2011 to illustrate its extensive involvement in major public issues, and to assess its impact. Each case chapter is authored by a distinguished academic or professional expert, several of whom were deeply involved in the cases’ litigation, enabling them to provide special insights. An overview chapter provides context for the court’s distinctive activity.

Many of the cases are so widely known that they have become part of the national conversation about law and policy. In the Karen Ann Quinlan decision, the court determined the right of privacy extends to refusing life-sustaining treatment. The Baby M case reined in surrogate parenting and focused on the child’s best interests. In the Mount Laurel decision, the court sought to increase affordable housing for low- and moderate-income residents throughout the state. The Megan’s Law case upheld legal regulation of sex offender community notification. A series of decisions known as Abbott/Robinson required the state to fund poor urban school districts at least on par with suburban districts.

Other less well known cases still have great public importance. Henningsen v. Bloomfield Motors reshaped product liability and tort law to protect consumers injured by defective cars; State v. Hunt shielded privacy rights from unwarranted searches beyond federal standards; Lehmann v. Toys ‘R’ Us protected employees from sexual harassment and a hostile work environment; Right to Choose v. Byrne expanded state constitutional abortion rights beyond the federal constitution; and Marini v. Ireland protected low-income tenants against removal from their homes.   

For some observers, the New Jersey Supreme Court represents the worst of judicial activism; others laud it for being, in its words, “the designated last-resort guarantor of the Constitution's command.” For Tractenberg, the court’s activism means it tends to find for the less powerful over the more powerful and for the public good against private interests, an approach he applauds.
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The Trial in American Life
Robert A. Ferguson
University of Chicago Press, 2006
In a bravura performance that ranges from Aaron Burr to O. J. Simpson, Robert A. Ferguson traces the legal meaning and cultural implications of prominent American trials across the history of the nation. His interdisciplinary investigation carries him from courtroom transcripts to newspaper accounts, and on to the work of such imaginative writers as Emerson, Thoreau, William Dean Howells, and E. L. Doctorow. Ferguson shows how courtrooms are forced to cope with unresolved communal anxieties and how they sometimes make legal decisions that change the way Americans think about themselves. Burning questions control the narrative. How do such trials mushroom into major public dramas with fundamental ideas at stake? Why did outcomes that we now see as unjust enjoy such strong communal support at the time? At what point does overexposure undermine a trial’s role as a legal proceeding?
           
Ultimately, such questions lead Ferguson to the issue of modern press coverage of courtrooms. While acknowledging that media accounts can skew perceptions, Ferguson argues forcefully in favor of full television coverage of them—and he takes the Supreme Court to task for its failure to grasp the importance of this issue. Trials must be seen to be understood, but Ferguson reminds us that we have a duty, currently ignored, to ensure that cameras serve the court rather than the media.
           
The Trial in American Life weaves Ferguson’s deep knowledge of American history, law, and culture into a fascinating book of tremendous contemporary relevance.
            
 “A distinguished law professor, accomplished historian, and fine writer, Robert Ferguson is uniquely qualified to narrate and analyze high-profile trials in American history. This is a superb book and a tremendous achievement. The chapter on John Brown alone is worth the price of admission.”—Judge Richard Posner
 
“A noted scholar of law and literature, [Ferguson] offers a work that is broad in scope yet focuses our attention on certain themes, notably the possibility of injustice, as illustrated by the Haymarket and Rosenberg prosecutions; the media’s obsession with pandering to baser instincts; and the future of televised trials. . . . One of the best books written on this subject in quite some time.”—Library Journal, starred review
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Popular Trials
Rhetoric, Mass Media, and the Law
Robert Hariman
University of Alabama Press, 1993

Contemporary scholarship illustrates the law’s increasingly powerful role in American life; legal education, in turn, has focused on the problems and techniques of communication. This book addresses these interests through critical study of eight popular trials: the 17th-century trial of Dr. Henry Sacheverell, and the 20th-century trials of Scopes, the Rosenbergs, the Chicago Seven, the Catonsville Nine, John Hinckley, Claus von Bulow, and San Diego Mayor Larry Hedgecock. Such trials spark major public debates, become symbols of public life, and legitimize particular beliefs and institutions. Despite high visibility and drama, however, the popular trial has not received sufficient study as persuasive event. Lying at the intersection of the institutional practices of law and the mass media, the popular trial has confounded study according to the conventional assumptions of scholarship in both law and communication studies.

            This volume defines popular trials as a genre of public communication, a genre that includes trials unusually prominent within public discourse. Further, popular trials are often characterize by special media presentations through televised coverage of the trial itself and news analysis, intense audience identification with the principal actors, and political and social consequences independent of the legal action. The essays in this volume stress the rhetorical functions of popular trials. Contributors in addition to the editor include Lawrance M. Bernabo, Barry Brummett, Celeste Michelle Condit, Juliet Dee, Susan J. Drucker, J. Justin Gustainis, Janice Platt Hunold, William Lewis, John Louis Lucaites, and Larry A. Williamson.
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Communication and Litigation
Case Studies of Famous Trials
Janice Schuetz
Southern Illinois University Press, 1988

Examination of seven famous trials, each concluding with an evaluation of the trial by a lawyer, judge, law professor, or communication scholar.

The Washington Post coverage of the John Hinckley case preceding the trial demonstrates the effects media may have on a trial. The Haymarket riot trial serves as an example of opening statements in a storytelling form.

By analyzing the trial of Bruno Richard Hauptmann, Schuetz and Snedaker explain direct examination according to its purpose, legal rules, ordering of witnesses, verbal and nonverbal techniques of interrogation, and tactics for introducing evidence.

The cross-examination in the Sacco-Vanzetti case shows how advocates enhance or decrease their persuasiveness by adopting communication maneuvers. Closing arguments in the Rosenberg trial took the form of a refutative story with a dual persuasive and instructional content.

The Supreme Court appeal in the Sam Sheppard case demonstrates the procedures, form, content, and style of arguments of appellate briefs. The Chicago Eight trial is an example of trial as theatre.

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The Logic of Women on Trial
Case Studies of Popular American Trials
Janice Schuetz
Southern Illinois University Press, 1994

Janice Schuetz investigates the felony trials of nine American women from colonial Salem to the present: Rebecca Nurse, tried for witchcraft in 1692; Mary E. Surratt, tried in 1865 for assisting John Wilkes Booth in the assassination of Abraham Lincoln; Lizzie Andrew Borden, tried in 1892 for the ax murder of her father and stepmother; Margaret Sanger, tried in 1915, 1917, and 1929 for her actions in support of birth control; Ethel Rosenberg, tried in 1951 for aiding the disclosure of secrets of the atom bomb to the Soviets; Yvonne Wanrow, tried in 1974 for killing a man who molested her neighbor’s daughter; Patricia Campbell Hearst, tried in 1975 for bank robbery as a member of the Symbionese Liberation Army; Jean Harris, tried in 1982 for killing Herman Tarnower, the Diet Doctor; and Darci Kayleen Pierce, tried in 1988 for kidnapping and brutally murdering a pregnant woman, then removing the baby from the woman’s womb.

In her analysis, Schuetz is careful to define these trials as popular trials. Characteristically, popular trials involve persons, issues, or crimes of social interest that attract extensive public interest and involvement. Such trials make a contribution to the ongoing historical dialogue about the meaning of justice and the legal system, while reflecting the values of the time and place in which they occur.

Schuetz examines the kinds of communication that transpired and the importance of gender in the trials by applying a different current rhetorical theory to each trial text. In every chapter, she explains her chosen interpretive theory, compares that framework with the discourse of the trial, and makes judgments about the meaning of the trial texts based on the interpretive theory.

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Wrongly Convicted
Perspectives on Failed Justice
Westervelt, Saundra D
Rutgers University Press, 2001

The American criminal justice system contains numerous safeguards to prevent the conviction of innocent persons. The Bill of Rights provides nineteen separate rights for the alleged criminal offender, including the right to effective legal representation and the right to be judged without regard to race or creed. Despite these safeguards, wrongful convictions persist, and the issue has reverberated in the national debate over capital punishment.

The essays in this volume are written from a cross-disciplinary perspective by some of the most eminent lawyers, criminologists, and social scientists in the field today. The articles are divided into four sections: the causes of wrongful convictions, the social characteristics of the wrongly convicted, case studies and personal histories, and suggestions for changes in the criminal justice system to prevent wrongful convictions. Contributors examine a broad range of issues, including the fallibility of eyewitness testimony, particularly in cross-racial identifications; the disadvantages faced by racial and ethnic minorities in the criminal justice system; and the impact of new technologies, especially DNA evidence, in freeing the innocent and bringing the guilty to justice. The book also asks such questions as: What legal characteristics do wrongful convictions share? What are the mechanisms that defendants and their attorneys use to overturn wrongful convictions? The book also provides case studies that offer specific examples of what can and does go wrong in the criminal justice system.

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The Fear Within
Spies, Commies, and American Democracy on Trial
Martelle, Scott
Rutgers University Press, 2011

Sixty years ago political divisions in the United States ran even deeper than today's name-calling showdowns between the left and right. Back then, to call someone a communist was to threaten that person's career, family, freedom, and, sometimes, life itself. Hysteria about the "red menace" mushroomed as the Soviet Union tightened its grip on Eastern Europe, Mao Zedong rose to power in China, and the atomic arms race accelerated. Spy scandals fanned the flames, and headlines warned of sleeper cells in the nation's midst--just as it does today with the "War on Terror."

In his new book, The Fear Within, Scott Martelle takes dramatic aim at one pivotal moment of that era. On the afternoon of July 20, 1948, FBI agents began rounding up twelve men in New York City, Chicago, and Detroit whom the U.S. government believed posed a grave threat to the nation--the leadership of the Communist Party-USA. After a series of delays, eleven of the twelve "top Reds" went on trial in Manhattan's Foley Square in January 1949.

The proceedings captivated the nation, but the trial quickly dissolved into farce. The eleven defendants were charged under the 1940 Smith Act with conspiring to teach the necessity of overthrowing the U.S. government based on their roles as party leaders and their distribution of books and pamphlets. In essence, they were on trial for their libraries and political beliefs, not for overt acts threatening national security. Despite the clear conflict with the First Amendment, the men were convicted and their appeals denied by the U.S. Supreme Court in a decision that gave the green light to federal persecution of Communist Party leaders--a decision the court effectively reversed six years later. But by then, the damage was done. So rancorous was the trial the presiding judge sentenced the defense attorneys to prison terms, too, chilling future defendants' access to qualified counsel.

Martelle's story is a compelling look at how American society, both general and political, reacts to stress and, incongruously, clamps down in times of crisis on the very beliefs it holds dear: the freedoms of speech and political belief. At different points in our history, the executive branch, Congress, and the courts have subtly or more drastically eroded a pillar of American society for the politics of the moment. It is not surprising, then, that The Fear Within takes on added resonance in today's environment of suspicion and the decline of civil rights under the U.S. Patriot Act.

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In Contempt
Defending Free Speech, Defeating HUAC
Ed Yellin and Jean Fagan Yellin
University of Michigan Press, 2022
“YOU ARE HEREBY COMMANDED to be and appear before the Committee on Un-American Activities of the House of Representatives of the United States, or a duly appointed subcommittee thereof, on February 10 (Monday), 1958, at ten o’clock a.m. at City Council Chambers, City Hall, Gary, Indiana, then and there to testify touching matters of inquiry committed to said committee, and not to depart without leave of said committee.”

So began a decade of hardship for Ed and Jean Yellin and their three young children as the repressive weight of the U.S. government, caught up in the throes of McCarthyism, crashed down upon their careers, their daily household budget, and their relationships to colleagues, neighbors, and their country. In Contempt is a faithful, factual testament to the enduring quality of patriotic dissent in our evolving democracy—and a loving reconstruction of what it meant to be labeled “unAmerican” for defending the Constitution.
 
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Errors, Lies, and Libel
Peter E. Kane. Foreword by Elmer Gertz
Southern Illinois University Press, 1992

Peter E. Kane takes a critical look at the development of the present law through a discussion of seventeen landmark libel cases.

One of the many points Kane clarifies is the important distinction between an error and a lie when judging whether someone is guilty of libel. For example, in the series of events that led to Goldwater vs. Ginzburg, Ralph Ginzburg, publisher of fact magazine, compiled and printed in fact a montage of quotes he had collected from psychiatrists about Barry Goldwater. It took five years of legal sparring for the courts to conclude that Ginzburg had deliberately published a malicious and irresponsible document and to rule in favor of Goldwater. Kane closes with a discussion of current thinking on possible libel reform.

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Racial Reckoning
Prosecuting America’s Civil Rights Murders
Renee C. Romano
Harvard University Press, 2014

Few whites who violently resisted the civil rights struggle were charged with crimes in the 1950s and 1960s. But the tide of a long-deferred justice began to change in 1994, when a Mississippi jury convicted Byron De La Beckwith for the 1963 murder of Medgar Evers. Since then, more than one hundred murder cases have been reopened, resulting in more than a dozen trials. But how much did these public trials contribute to a public reckoning with America’s racist past? Racial Reckoning investigates that question, along with the political pressures and cultural forces that compelled the legal system to revisit these decades-old crimes.

“[A] timely and significant work…Romano brilliantly demystifies the false binary of villainous white men like Beckwith or Edgar Ray Killen who represent vestiges of a violent racial past with a more enlightened color-blind society…Considering the current partisan and racial divide over the prosecution of police shootings of unarmed black men, this book is a must-read for historians, legal analysts, and journalists interested in understanding the larger meanings of civil rights or racially explosive trials in America.”
—Chanelle Rose, American Historical Review

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Fugitive Justice
Runaways, Rescuers, and Slavery on Trial
Steven Lubet
Harvard University Press, 2010

During the tumultuous decade before the Civil War, no issue was more divisive than the pursuit and return of fugitive slaves—a practice enforced under the Fugitive Slave Act of 1850. When free Blacks and their abolitionist allies intervened, prosecutions and trials inevitably followed. These cases involved high legal, political, and—most of all—human drama, with runaways desperate for freedom, their defenders seeking recourse to a “higher law” and normally fair-minded judges (even some opposed to slavery) considering the disposition of human beings as property.

Fugitive Justice tells the stories of three of the most dramatic fugitive slave trials of the 1850s, bringing to vivid life the determination of the fugitives, the radical tactics of their rescuers, the brutal doggedness of the slavehunters, and the tortuous response of the federal courts. These cases underscore the crucial role that runaway slaves played in building the tensions that led to the Civil War, and they show us how “civil disobedience” developed as a legal defense. As they unfold we can also see how such trials—whether of rescuers or of the slaves themselves—helped build the northern anti-slavery movement, even as they pushed southern firebrands closer to secession.

How could something so evil be treated so routinely by just men? The answer says much about how deeply the institution of slavery had penetrated American life even in free states. Fugitive Justice powerfully illuminates this painful episode in American history, and its role in the nation’s inexorable march to war.

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