A SCHOLARLY BOOK REPOSITORY
Administering Justice examines the leadership role of chief justices in the American states, including how those duties require chief justices to be part of the broader state political environment. Vining and Wilhelm focus extensively on the power of chief justices as public spokespersons, legislative liaisons, and reform leaders. In contrast to much existing research on chief justices in the states, this study weighs their extrajudicial responsibilities rather than intracourt leadership. By assessing the content of State of the Judiciary remarks delivered over a period of sixty years, Vining and Wilhelm are able to analyze the reform agendas advanced by chief justices and determine what factors influence the likelihood of success. These analyses confirm that chief justices engage with state politics in meaningful ways and that reactions to their proposals are influenced by ideological congruence with other political elites and the scope of their requests. Administering Justice also examines the chief justice position as an institution, provides a collective profile of its occupants, and surveys growing diversity among court leaders.
American methods of policy implementation and dispute resolution are more adversarial and legalistic when compared with the systems of other economically advanced countries. Americans more often rely on legal threats and lawsuits. American laws are generally more complicated and prescriptive, adjudication more costly, and penalties more severe. In a thoughtful and cogently argued book, Robert Kagan examines the origins and consequences of this system of "adversarial legalism."
Kagan describes the roots of adversarial legalism and the deep connections it has with American political institutions and values. He investigates its social costs as well as the extent to which lawyers perpetuate it. Ranging widely across many legal fields, including criminal law, environmental regulations, tort law, and social insurance programs, he provides comparisons with the legal and regulatory systems of western Europe, Canada, and Japan that point to possible alternatives to the American methods.
Kagan notes that while adversarial legalism has many virtues, its costs and unpredictability often alienate citizens from the law and frustrate the quest for justice. This insightful study deepens our understanding of law and its relationship to politics in America and raises valuable questions about the future of the American legal system.
In the first edition of this groundbreaking book, Robert Kagan explained why America is much more adversarial—likely to rely on legal threats and lawsuits—than other economically advanced countries, with more prescriptive laws, more costly adjudications, and more severe penalties. This updated edition also addresses the rise of the conservative legal movement and anti-statism in the Republican party, which have put in sharp relief the virtues of adversarial legalism in its ability to empower citizens, lawyers, and judges to mount challenges to the arbitrary or unlawful exercise of government authority.
“This is a wonderful piece of work, richly detailed and beautifully written. It is the best, sanest, and most comprehensive evaluation and critique of the American way of law that I have seen. Every serious scholar concerned with justice and efficiency, and every policymaker who is serious about improving the American legal order, should read this trenchant and exciting book.”
—Lawrence Friedman, Stanford University
“A tour de force. It is an elegantly written, consistently insightful analysis and critique of the American emphasis on litigation and punitive sanctions in the policy and administrative process.”
—Charles R. Epp, Law and Society Review
"Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith," wrote Felix S. Cohen, an early expert in Indian legal affairs.
In this book, David Wilkins charts the "fall in our democratic faith" through fifteen landmark cases in which the Supreme Court significantly curtailed Indian rights. He offers compelling evidence that Supreme Court justices selectively used precedents and facts, both historical and contemporary, to arrive at decisions that have undermined tribal sovereignty, legitimated massive tribal land losses, sanctioned the diminishment of Indian religious rights, and curtailed other rights as well.
These case studies—and their implications for all minority groups—make important and troubling reading at a time when the Supreme Court is at the vortex of political and moral developments that are redefining the nature of American government, transforming the relationship between the legal and political branches, and altering the very meaning of federalism.
Winner, Friends of the Dallas Public Library Award from the Texas Institute of Letters, 2003
Antiphon was a fifth-century Athenian intellectual (ca. 480-411 BCE) who created the profession of speechwriting while serving as an influential and highly sought-out adviser to litigants in the Athenian courts. Three of his speeches are preserved, together with three sets of Tetralogies (four hypothetical paired speeches), whose authenticity is sometimes doubted. Fragments also survive of intellectual treatises on subjects including justice, law, and nature (physis), which are often attributed to a separate Antiphon the Sophist. Were these two Antiphons really one and the same individual, endowed with a wide-ranging mind ready to tackle most of the diverse intellectual interests of his day?
Through an analysis of all these writings, this book convincingly argues that they were composed by a single individual, Antiphon the Athenian. Michael Gagarin sets close readings of individual works within a wider discussion of the fifth-century Athenian intellectual climate and the philosophical ferment known as the sophistic movement. This enables him to demonstrate the overall coherence of Antiphon's interests and writings and to show how he was a pivotal figure between the sophists and the Attic orators of the fourth century. In addition, Gagarin's argument allows us to reassess the work of the sophists as a whole, so that they can now be seen as primarily interested in logos (speech, argument) and as precursors of fourth-century rhetoric, rather than in their usual role as foils for Plato.
To many outsiders, China has an image as a realm of Oriental despotism where law is at best window dressing and at worst an instrument of coercion and tyranny. In this highly original contribution to the interdisciplinary field of law and humanities, Haiyan Lee contends that this image arises from a skewed understanding of China’s political-legal culture, particularly the failure to distinguish what she calls high justice and low justice.
In the Chinese legal imagination, Lee shows, justice is a vertical concept, with low justice between individuals firmly subordinated to the high justice of the state. China’s political-legal culture is marked by a mistrust of law’s powers, and as a result, it privileges substantive over procedural justice. Calling on a wide array of narratives—stories of crime and punishment, subterfuge and exposé, guilt and redemption—A Certain Justice helps us recognize the fight for justice outside the familiar arenas of liberal democracy and the rule of law.
In this first thorough study of the origins of clemency, Dowling provides a vivid look at the ideology of clemency and new philosophies of mercy and cruelty in Western society, through an examination of ancient art, literature, historical documents, and archaeological artifacts. By illuminating the emergence of mercy and forgiveness as social concepts, and the mechanisms by which peoples are transformed in response to changes in power structures, Dowling makes an important contribution to the study of the ancient Roman world, as well as to modern Western culture.
Americans are losing faith in their courts. After long delays, judges often get rid of cases for technical reasons, or force litigants to settle rather than issue a decision. When they do decide cases, we can't understand why.
The Common Flaw seeks to rid the American lawsuit of this needless complexity. The book proposes fifty changes from the filing of a complaint in court to the drafting of appellate decisions to replace the legal system’s formalism with a kind of humanism. Thomas G. Moukawsher calls for courts that decide cases promptly based more on the facts than the law, that prioritize the parties involved over lawyers, that consider the consequences for the people and the public, and that use words we can all understand. Sure to spark an important conversation about court reform, The Common Flaw makes the case for a more effective and credible legal system with warmth and humor, incorporating cartoons alongside insightful reflection.
Powell argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, he goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what Powell calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers. Constitutional Conscience concludes that the need for these qualities in judges—as well as lawyers and citizens—is implicit in our constitutional practices, and that without them judicial review would forfeit both its own integrity and the credibility of the courts themselves.
The authors present the first comprehensive examination of the shifting role of the Courts of Appeals, investigating changes over time and presenting the first systematic analyses of those changes. Their work is the first book to utilize the database of the U.S. Courts of Appeals, analyzing over 15,000 cases to examine trends between 1925 and 1988. The book answers questions such as who are the judges? What are their decisional tendencies? What has been the role of region and partisan politics? Who are the litigants? And who has won and who has lost throughout the twentieth century? It is the only current, up-to-date book on the Courts of Appeals and an essential read for all scholars and students interested in American politics and judicial behavior.
Donald R. Songer is Professor of Political Science, University of South Carolina. Reginald S. Sheehan is Associate Professor of Political Science and Director of the Program for Law and Juridical Politics, Michigan State University. Susan B. Haire is Assistant Professor of Political Science, University of Georgia
Community Courts are designed to handle a city’s low-level offenses and quality-of-life crimes, such as littering, loitering, or public drunkenness. Court advocates maintain that these largely victimless crimes jeopardize the well-being of residents, businesses, and visitors. Whereas traditional courts might dismiss such cases or administer a small fine, community courts aim to meaningfully punish offenders to avoid disorder escalating to apocalyptic decline.
Courting the Community is a fascinating ethnography that goes behind the scenes to explore how quality-of-life discourses are translated into court practices that marry therapeutic and rehabilitative ideas. Christine Zozula shows how residents and businesses participate in meting out justice—such as through community service, treatment, or other sanctions—making it more emotional, less detached, and more legitimate in the eyes of stakeholders. She also examines both “impact panels,” in which offenders, residents, and business owners meet to discuss how quality-of-life crimes negatively impact the neighborhood, as well as strategic neighborhood outreach efforts to update residents on cases and gauge their concerns.
Zozula’s nuanced investigation of community courts can lead us to a deeper understanding of punishment and rehabilitation and, by extension, the current state of the American court system.
Prosecutors are powerful figures in any criminal justice system. They decide what crimes to prosecute, whom to pursue, what charges to file, whether to plea bargain, how aggressively to seek a conviction, and what sentence to demand. In the United States, citizens can challenge decisions by police, judges, and corrections officials, but courts keep their hands off the prosecutor. Curiously, in the United States and elsewhere, very little research is available that examines this powerful public role. And there is almost no work that critically compares how prosecutors function in different legal systems, from state to state or across countries. Prosecutors and Politics begins to fill that void.
Police, courts, and prisons are much the same in all developed countries, but prosecutors differ radically. The consequences of these differences are enormous: the United States suffers from low levels of public confidence in the criminal justice system and high levels of incarceration; in much of Western Europe, people report high confidence and support moderate crime control policies; in much of Eastern Europe, people’s perceptions of the law are marked by cynicism and despair. Prosecutors and Politics unpacks these national differences and provides insight into this key area of social control.
Since 1979 the Crime and Justice series has presented a review of the latest international research, providing expertise to enhance the work of sociologists, psychologists, criminal lawyers, justice scholars, and political scientists. The series explores a full range of issues concerning crime, its causes, and its cure.
While disassociating law from a strictly legalist approach, the volume showcases a number of highly original studies on topics such as the role of law in processes of state formation and social and political conflict, the resonance between legal and cultural phenomena, and the contested nature of law-enforcing discourses and practices. Treating law as an ambiguous and malleable arena of struggle, the contributors to this volume—scholars from North and Latin America who represent the new wave in legal history that has emerged in recent years-- demonstrate that law not only produces and reformulates culture, but also shapes and is shaped by larger processes of political, social, economic, and cultural change. In addition, they offer valuable insights about the ways in which legal systems and cultures in Latin America compare to those in England, Western Europe, and the United States.
This volume will appeal to scholars in Latin American studies and to those interested in the social, cultural, and comparative history of law and legal phenomena.
Contributors. Carlos Aguirre, Dain Borges, Lila Caimari, Arlene J. Díaz, Luis A. Gonzalez, Donna J. Guy, Douglas Hay, Gilbert M. Joseph, Juan Manuel Palacio, Diana Paton, Pablo Piccato, Cristina Rivera Garza, Kristin Ruggiero, Ricardo D. Salvatore, Charles F. Walker
In The Death of the American Trial, distinguished legal scholar Robert P. Burns makes an impassioned case for reversing the rapid decline of the trial before we lose one of our public culture’s greatest achievements. As a practice that is adapted for modern times yet rooted in ancient wisdom, the trial is uniquely suited to balance the tensions—between idealism and realism, experts and citizens, contextual judgment and reliance on rules—that define American culture. Arguing that many observers make a grave mistake by taking a complacent or even positive view of the trial’s demise, Burns concludes by laying out the catastrophic consequences of losing an institution that so perfectly embodies democratic governance.
Edited by Angela Condello, Carlo Grassi and Andreas Philippopoulos-Mihalopoulos
With an introduction by Carlo Grassi
Translated by Cadenza Academic Translations and Angela Condello
What does it mean to judge when there is no general and universal norm to define what is right and what is wrong? Can laws be absent and is law always necessary?
This is the first English translation published of Jean- Luc Nancy’s acclaimed consideration of the law’s most pervasive principles in the context of actual systems and contemporary institutions, power, norms, laws. In a world where it is impossible to imagine the realisation of an ideal of justice that corresponds to every person’s ideal of justice, Nancy probes the limits of legal normativity. Moreover, the question is asked: how can legal normativity be legitimised? A legal order based on performativity and formal validity is questionable and other forces than juridical normativity are at the heart of Dies Irae. Such leads inevitably to the processes of inclusion and exclusion that characterise contemporary juridical systems and those issues of identity, hostility and self-representation central to contemporary political and legal debates
Domestic Violence and the Law in Colonial and Postcolonial Africa reveals the ways in which domestic space and domestic relationships take on different meanings in African contexts that extend the boundaries of family obligation, kinship, and dependency. The term domestic violence encompasses kin-based violence, marriage-based violence, gender-based violence, as well as violence between patrons and clients who shared the same domestic space. As a lived experience and as a social and historical unit of analysis, domestic violence in colonial and postcolonial Africa is complex.
Using evidence drawn from Sub-saharan Africa, the chapters explore the range of domestic violence in Africa’s colonial past and its present, including taxation and the insertion of the household into the broader structure of colonial domination.
African histories of domestic violence demand that scholars and activists refine the terms and analyses and pay attention to the historical legacies of contemporary problems. This collection brings into conversation historical, anthropological, legal, and activist perspectives on domestic violence in Africa and fosters a deeper understanding of the problem of domestic violence, the limits of international human rights conventions, and local and regional efforts to address the issue.
Hannah E. Britton examines the reasons gendered violence persists in relationship to social inequalities even after women assume political power. Venturing into South African communities, Britton invites service providers, religious and traditional leaders, police officers, and medical professionals to address gender-based violence in their own words. Britton finds the recent turn toward carceral solutions—with a focus on arrests and prosecutions—fails to address the complexities of the problem and looks at how changing specific community dynamics can defuse interpersonal violence. She also examines how place and space affect the implementation of policy and suggests practical ways policymakers can support street level workers.
Clear-eyed and revealing, Ending Gender-Based Violence offers needed tools for breaking cycles of brutality and inequality around the world.
In Everyday Desistance, Laura Abrams and Diane J. Terry examine the lives of young people who spent considerable time in and out of correctional institutions as adolescents. These formerly incarcerated youth often struggle with the onset of adult responsibilities at a much earlier age than their more privileged counterparts. In the context of urban Los Angeles, with a large-scale gang culture and diminished employment prospects, further involvement in crime appears almost inevitable. Yet, as Abrams and Terry point out, these formerly imprisoned youth are often quite resilient and can be successful at creating lives for themselves after months or even years of living in institutions run by the juvenile justice system.
This book narrates the day-to-day experiences of these young men and women, focusing on their attempts to surmount the challenges of adulthood, resisting a return to criminal activity, and formulating long-term goals for a secure adult future.
Those surviving on low incomes often see the legal system as an oppressive force stacked against them. Everyday Justice is about lawyers trying to make the law work for these people. This book traces the development and evolution of legal aid in Middle Tennessee from the late 1960s to the turn of the millennium, as told by Ashley Wiltshire, who worked for the Legal Aid Society of Middle Tennessee and the Cumberlands in all its incarnations for four decades, beginning a year after its inception.
Set in the context of the legal aid movement in the United States—beginning as a part of the social awakening in the post–Civil War era, continuing with volunteer efforts in the first part of the twentieth century, and coming to fruition beginning with the OEO Office of Legal Services grants of the 1960s as part of the War on Poverty—Everyday Justice is a story of Nashville, which levied an extended period of opposition because of prevailing cultural and religious views on race and poverty.
An acclaimed political theorist offers a fresh, interdisciplinary analysis of the politics of refusal, highlighting the promise of a feminist politics that does not simply withdraw from the status quo but also transforms it.
The Bacchae, Euripides’s fifth-century tragedy, famously depicts the wine god Dionysus and the women who follow him as indolent, drunken, mad. But Bonnie Honig sees the women differently. They reject work, not out of laziness, but because they have had enough of women’s routine obedience. Later they escape prison, leave the city of Thebes, explore alternative lifestyles, kill the king, and then return to claim the city. Their “arc of refusal,” Honig argues, can inspire a new feminist politics of refusal.
Refusal, the withdrawal from unjust political and economic systems, is a key theme in political philosophy. Its best-known literary avatar is Herman Melville’s Bartleby, whose response to every request is, “I prefer not to.” A feminist politics of refusal, by contrast, cannot simply decline to participate in the machinations of power. Honig argues that a feminist refusal aims at transformation and, ultimately, self-governance. Withdrawal is a first step, not the end game.
Rethinking the concepts of refusal in the work of Giorgio Agamben, Adriana Cavarero, and Saidiya Hartman, Honig places collective efforts toward self-governance at refusal’s core and, in doing so, invigorates discourse on civil and uncivil disobedience. She seeks new protagonists in film, art, and in historical and fictional figures including Sophocles’s Antigone, Ovid’s Procne, Charlie Chaplin’s Tramp, Leonardo da Vinci’s Madonna, and Muhammad Ali. Rather than decline the corruptions of politics, these agents of refusal join the women of Thebes first in saying no and then in risking to undertake transformative action.
Fighting Monsters in the Abyss offers a deeply insightful analysis of the efforts by the second administration of Colombian President Álvaro Uribe Vélez (2006–2010) to resolve a decades-long Marxist insurgency in one of Latin America’s most important nations. Continuing work from his prior books about earlier Colombian presidents and yet written as a stand-alone study, Colombia expert Harvey F. Kline illuminates the surprising successes and setbacks in Uribe’s response to this existential threat.
In State Building and Conflict Resolution in Colombia, 1986–1994, Kline documented and explained the limited successes of Presidents Virgilio Barco and César Gaviria in putting down the revolutionaries while also confronting challenges from drug dealers and paramilitary groups. The following president Andrés Pastrana then boldly changed course and attempted resolution through negotiations, an effort whose failure Kline examines in Chronicle of a Failure Foretold. In his third book, Showing Teeth to the Dragons, Kline shows how in his first term President Álvaro Uribe Vélez more successfully quelled the insurrection through a combination of negotiated demobilization of paramilitary groups and using US backing to mount more effective military campaigns.
Kline opens Fighting Monsters in the Abyss with a recap of Colombia’s complex political history, the development of Marxist rebels and paramilitary groups and their respective relationships to the narcotics trade, and the attempts of successive Colombian presidents to resolve the crisis. Kline next examines the ability of the Colombian government to reimpose rule in rebel-controlled territories as well as the challenges of administering justice. He recounts the difficulties in the enforcement of the landmark Law of Justice and Peace as well as two significant government scandals, that of the “false positives” (“falsos positivos”) in which innocent civilians were killed by the military to inflate the body counts of dead insurgents and a second scandal related to illegal wiretapping.
In tracing Uribe’s choices, strategies, successes, and failures, Kline also uses the example of Colombia to explore a dimension quite unique in the literature about state building: what happens when some members of a government resort to breaking rules or betraying their societies’ values in well-intentioned efforts to build a stronger state?
Looks to the philosophy and experience of prisoners to reinvigorate our concepts of justice, solidarity, and freedom
In Fugitive Thought, Michael Hames-García argues that writings by prisoners are instances of practical social theory that seek to transform the world. Unlike other authors who have studied prisons or legal theory, Hames-García views prisoners as political and social thinkers whose ideas are as valuable as those of lawyers and philosophers.
As key moral terms like “justice,” “solidarity,” and “freedom” have come under suspicion in the post–Civil Rights era, political discussions on the Left have reached an impasse. Fugitive Thought reexamines and reinvigorates these concepts through a fresh approach to philosophies of justice and freedom, combining the study of legal theory and of prison literature to show how the critiques and moral visions of dissidents and participants in prison movements can contribute to the shaping and realization of workable ethical conceptions. Fugitive Thought focuses on writings by black and Latina/o lawyers and prisoners to flesh out the philosophical underpinnings of ethical claims within legal theory and prison activism.
The History of Indiana Law explores the ways in which the state’s legal culture responded to—and at times resisted—the influence of national legal developments, including the tortured history of race relations in Indiana. Legal issues addressed by the contributors include the Indiana constitutional tradition, civil liberties, race, women’s rights, family law, welfare and the poor, education, crime and punishment, juvenile justice, the role of courts and judiciary, and landmark cases. The essays describe how Indiana law has adapted to the needs of an increasingly complex society.
The History of Indiana Law is an indispensable reference and invaluable first source to learn about law and society in Indiana during almost two centuries of statehood.
Since 2006, the United Nations and Cambodian Government have participated in the Extraordinary Chambers in the Courts of Cambodia, a hybrid tribunal created to try key Khmer Rouge officials for crimes of the Pol Pot era. In Hybrid Justice, John D. Ciorciari and Anne Heindel examine the contentious politics behind the tribunal’s creation, its flawed legal and institutional design, and the frequent politicized impasses that have undermined its ability to deliver credible and efficient justice and leave a positive legacy. They also draw lessons and principles for future hybrid and international courts and proceedings.
Adam Sitze meticulously traces the origins of South Africa’s Truth and Reconciliation Commission back to two well-established instruments of colonial and imperial governance: the jurisprudence of indemnity and the commission of inquiry. This genealogy provides a fresh, though counterintuitive, understanding of the TRC’s legal, political, and cultural importance. The TRC’s genius, Sitze contends, is not the substitution of “forgiving” restorative justice for “strict” legal justice but rather the innovative adaptation of colonial law, sovereignty, and government. However, this approach also contains a potential liability: if the TRC’s origins are forgotten, the very enterprise intended to overturn the jurisprudence of colonial rule may perpetuate it. In sum, Sitze proposes a provocative new means by which South Africa’s Truth and Reconciliation Commission should be understood and evaluated.
In the antebellum Midwest, Americans looked to the law, and specifically to the jury, to navigate the uncertain terrain of a rapidly changing society. During this formative era of American law, the jury served as the most visible connector between law and society. Through an analysis of the composition of grand and trial juries and an examination of their courtroom experiences, Stacy Pratt McDermott demonstrates how central the law was for people who lived in Abraham Lincoln’s America.
McDermott focuses on the status of the jury as a democratic institution as well as on the status of those who served as jurors. According to the 1860 census, the juries in Springfield and Sangamon County, Illinois, comprised an ethnically and racially diverse population of settlers from northern and southern states, representing both urban and rural mid-nineteenth-century America. It was in these counties that Lincoln developed his law practice, handling more than 5,200 cases in a legal career that spanned nearly twenty-five years.
Drawing from a rich collection of legal records, docket books, county histories, and surviving newspapers, McDermott reveals the enormous power jurors wielded over the litigants and the character of their communities.
Here, Julie Bernath takes a different tack, deliberately decentering the trials in an effort to understand the ECCC in its particular context—and, by extension, the degree to which notions of transitional justice generally must be understood in particular social, cultural, and political contexts. She focuses on “sites of resistance” to the ECCC, including not only members of the elite political class but also citizens who do not, for a variety of tangled reasons, participate in the tribunal—and even resistance from victims of the regime and participants in the trials. Bernath demonstrates that the ECCC both shapes and is shaped by long-term contestation over Cambodia’s social, economic, and political transformations, and thereby argues that transitional justice must be understood locally rather than as a homogenous good that can be implanted by international actors.
Scholars have recognized the importance of ritual and symbolic behaviors in the Ottonian political sphere, while puzzling over the apparent lack of administrative organization, a contradiction between what we know about the Ottonians as successful rulers and their traditional characterization as rulers of a disorganized polity. Trying to account for the apparent disparity between their political and military achievements, cultural and artistic efflorescence, and relative dynastic stability, which seemingly accompanied a disinterest in writing law or creating a centralized hierarchical administration, is a tension that persists in the scholarship. This book argues that far from being accidental successes or employing primitive methods of governance, the Ottonians were shrewd rulers and administrators who exploited traditional methods of conflict resolution and delegated jurisdictional authority to keep control over their vast empire. Thus, one of the important things that this book aims to accomplish is to challenge our preconceived notions of what successful government looks like.
Private law touches every aspect of people's daily lives—landholding, inheritance, private property, marriage and family relations, contracts, employment, and business dealings—and the court records and legal documents produced under private law are a rich source of information for anyone researching social, political, economic, or environmental history. But to utilize these records fully, researchers need a fundamental understanding of how private law and legal institutions functioned in the place and time period under study.
This book offers the first comprehensive introduction in either English or Spanish to private law in Spanish Latin America from the colonial period to the present. M. C. Mirow organizes the book into three substantial sections that describe private law and legal institutions in the colonial period, the independence era and nineteenth century, and the twentieth century. Each section begins with an introduction to the nature and function of private law during the period and discusses such topics as legal education and lawyers, legal sources, courts, land, inheritance, commercial law, family law, and personal status. Each section also presents themes of special interest during its respective time period, including slavery, Indian status, codification, land reform, and development and globalization.
Many people believe that conflict in the well-disciplined Japanese society is so rare that the Japanese legal system is of minor importance. Frank Upham shows conclusively that this view is mistaken and demonstrates that the law is extensively used, on the one hand, by aggrieved groups to articulate their troubles and mobilize political support and, on the other, by the government to channel and manage conflict after it has arisen.
This is the first Western book to take law seriously as an integral part of the dynamics of Japanese business and society, and to show how an informal legal system can work in a complex industrial democracy. Upham does this by focusing on four recent controversies with broad social implications: first, how Japan dealt with the world’s worst industrial pollution and eventually became a model for Western environmental reforms; second, how the police and courts have allowed one Japanese outcast group to use carefully orchestrated physical coercion to achieve wide-ranging affirmative action programs; third, how Japanese working women used the courts to force employers to eliminate many forms of discrimination and eventually convinced the government to pass an equal employment opportunity act; and, finally, how the Ministry of International Trade and Industry and various sectors of Japanese industry have used legal doctrine to cope with the dramatic changes in Japan’s economy over the last twenty-five years.
Readers interested in the interaction of law and society generally; those interested in contemporary Japanese sociology, politics, and anthropology; and American lawyers, businessmen, and government officials who want to understand how law works in Japan will all need this unusual new book.
A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.
Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner’s theory steers between political theorists’ concept of deliberative democracy on the left and economists’ public-choice theory on the right. It makes a significant contribution to the theory of democracy—and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.
In Hungary, which fell under Soviet influence at the end of World War II, those who had participated in the wartime atrocities were tried by so called people’s courts. This book analyses this process in an objective, quantitative way, contributing to the present timely discussion on the Hungarian war guilt. The authors apply a special focus on the gender aspect of the trials.
Political justice had a specific nature in Hungary. War criminals began to be brought to trial while fighting was still underway in the western part of the country, well before the Nuremberg trials. Not only crimes committed during the war were tried in the same frame but also post-war ones. As far as the post-war period is concerned, legal proceedings regarding these crimes were most often launched on the basis of Act VII of 1946. This act of law concerned “the criminal law protection of the democratic constitutional order and the republic” and its basic aim was to facilitate the creation of a communist dictatorship and to deal with perceived or real enemies of the regime.
Jauregui explores the paradoxical demands placed on Indian police, who are at once routinely charged with abuses of authority at the same time that they are asked to extend that authority into any number of both official and unofficial tasks. Her ethnography of their everyday life and work demonstrates that police authority is provisional in several senses: shifting across time and space, subject to the availability and movement of resources, and dependent upon shared moral codes and relentless instrumental demands. In the end, she shows that police authority in India is not simply a vulgar manifestation of raw power or the violence of law but, rather, a contingent and volatile social resource relied upon in different ways to help realize human needs and desires in a pluralistic, postcolonial democracy.
Provocative and compelling, Provisional Authority provides a rare and disquieting look inside the world of police in India, and shines critical light on an institution fraught with moral, legal and political contradictions.
Pursuing Justice in Africa focuses on the many actors pursuing many visions of justice across the African continent—their aspirations, divergent practices, and articulations of international and vernacular idioms of justice. The essays selected by editors Jessica Johnson and George Hamandishe Karekwaivanane engage with topics at the cutting edge of contemporary scholarship across a wide range of disciplines. These include activism, land tenure, international legal institutions, and postconflict reconciliation.
Building on recent work in sociolegal studies that foregrounds justice over and above concepts such as human rights and legal pluralism, the contributors grapple with alternative approaches to the concept of justice and its relationships with law, morality, and rights. While the chapters are grounded in local experiences, they also attend to the ways in which national and international actors and processes influence, for better or worse, local experiences and understandings of justice. The result is a timely and original addition to scholarship on a topic of major scholarly and pragmatic interest.
Contributors:
Felicitas Becker, Jonathon L. Earle, Patrick Hoenig, Stacey Hynd, Fred Nyongesa Ikanda, Ngeyi Ruth Kanyongolo, Anna Macdonald, Bernadette Malunga, Alan Msosa, Benson A. Mulemi, Holly Porter, Duncan Scott, Olaf Zenker.
Franklin Strier brings this critical look at trial reform up to date with a new preface in which he discusses how the inordinate amount of public attention of the O. J. Simpson trial, and the power the attorneys had over the court in that case, shed new light on the trial system's weaknesses and inequities.
"Anyone with an interest in courtroom trials will be fascinated by Strier's analysis of the game of law and suggestions for reforming the trail system to provide justice in a greater number of cases. . . . Highly recommended."—Choice
How is it that a great swath of the independent, English-speaking Caribbean continues to accept the judicial oversight of their former colonizer via the British institution of the Privy Council? And what possibilities might the Caribbean Court of Justice—a judicial institution responsive to the region, not to any single nation—offer for untangling sovereignty and regionhood, law and modernity, and postcolonial Caribbean identity?
Joining the Court as an intern, Lee Cabatingan studied its work up close: she attended each court hearing and numerous staff meetings, served on committees, assisted with the organization of conferences, and helped prepare speeches and presentations for the judges. She now offers insight into not only how the Court positions itself vis-à-vis the Caribbean region and the world but also whether the Court—and, perhaps, the region itself as an overarching construct—might ever achieve a real measure of popular success. In their quest for an accepting, eager constituency, the Court is undertaking a project of extrajudicial region building that borrows from the toolbox of the nation-state. In each chapter, Cabatingan takes us into an analytical dimension familiar from studies of nation and state building—myth, territory, people, language, and brand—to help us understand not only the Court and its ambitions but also the regionalist project, beset as it is with false starts and disappointments, as a potential alternative to the sovereign state.
Reimagining Courts recommends a triage process based upon case characteristics, litigant goals, and resolution processes. Courts must fundamentally reorganize their business processes around the concept of the litigant as a customer. Each adjudication process that the authors propose requires a different case management process and different amounts of judicial, staff, and facility resources.
Reimagining Courts should spark much-needed debate. This book will be of significant interest to lawyers, judges, and professionals in the court system as well as to scholars in public administration and political science.
In this rich ethnographic study, Vogler reveals how different legal arenas take dramatically different approaches to classifying sexuality and use those classifications to legitimate different forms of social control. By delving into the histories behind these diverging classification practices and analyzing their contemporary reverberations, Vogler shows how the science of sexuality is far more central to state power than we realize.
Transitions: Legal Change, Legal Meanings illustrates the various intersections, crises, and shifts that continually occur within the law, and how these moments of change interact with and comment on contemporary society.
Akhil Reed Amar / William L. Andreen /
Jack M. Beermann / Heather Elliott / Joshua
Alexander Geltzer / David Gray / Paul
Horwitz / Daniel H. Joyner / Nina
Mendelson / Meredith Render / Austin
Sarat / Ruti Teitel / Lindsey Ohlsson Worth
Court administrators and judges have long acknowledged that culture plays an important role in the function of trial courts. Trial Courts as Organizations provides a comprehensive framework for understanding this organizational culture, along with a set of steps and tools to assess and measure the current and preferred culture.
The authors examine how courts operate, what characteristics they may display, and how they function as a unit to preserve judicial independence, strengthen organizational leadership, and influence court performance. They identify four different types of institutional cultures using a systematic analysis of alternative values on how work is done. Each culture is shown to have its own strengths and weaknesses in achieving values, such as timely case resolution, access to court services, and procedural justice. Accordingly, the authors find judges and administrators prefer a definite pattern of different cultures, called a "mosaic," to guide how their courts operate in the future.
Voices of Crime examines these official and unofficial perceptions of deviancy, justice, and social control in modern Latin America. As a collection of essays exploring histories of crime and justice, the book focuses on both cultural and social history and the interactions among state institutions, the press, and a variety of elite and non-elite social groups. Arguing that crime in Latin America is best understood as a product of ongoing negotiation between “top-down” and “bottom up” ideas (not just as the exercise of power from the state), the authors seek to document and illustrate the everyday experiences of crime in particular settings, emphasizing underresearched historical actors such as criminals, victims, and police officers.
The book examines how these social groups constructed, contested, navigated, and negotiated notions of crime, criminality, and justice. This reorientation—in contrast to much of the existing historical literature that focuses on elite and state actors—prompts the authors to critically examine the very definition of crime and its perpetrators, suggesting that “not only the actions of the poor and racial others but also the state can be termed as criminal.”
In a new preface to this foundational book on the American jury, Jeffrey Abramson responds to his critics, defends his views on the jury as an embodiment of deliberative democracy in action, and reflects on recent jury trials and reforms.
Praise for the previous edition:
“Power to the persuasive! That’s the message of Jeffrey Abramson’s incisive, thoroughly researched, demanding book about the role of the jury in American democracy…At a rare moment when the media have whetted the public appetite for commentary about the jury, of all things, a fresh, substantial [book] has come along.”—Washington Post Book World
“Anyone tempted to ridicule juries…should read Jeffrey Abramson’s profound and eloquent defense of the American jury system…Mr. Abramson has faith in juries because they are a form of democratic justice. He describes in fascinating detail how democracy in America has developed over the years in tandem with the jury system.”—The Economist
The cases heard by the Surpreme Court are, first and foremost, disputes involving real people with actual stories. The accidents and twists of circumstance that have brought these people to the last resort of litigation can make for compelling drama. The contributors to this volume bring these dramatic stories to life, using them as a backdrop for the larger issues of law and social policy that constitute the Court’s business: abortion, separation of church and state, freedom of speech, the right of privacy, crime, violence, discrimination, and the death penalty. In the course of these narratives, the authors describe the personalities and jurisprudential leanings of the various Justices, explaining how the interplay of these characters and theories about the Constitution interact to influence the Court’s decisions.
Highly readable and richly informative, this book offers an unusually clear and comprehensive portrait of one of the most influential institutions in modern American life.
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