A SCHOLARLY BOOK REPOSITORY102 start with D start with D
A Dangerous Idea tells an overlooked but powerful story of Alaska Natives fighting for their rights under American law and details one of the rare successes for Native Americans in their nearly two-hundred-year effort to define and protect their rights.
Taking as a point of departure H. L. A. Hart’s The Concept of the Law, Peter Fitzgerald shows how Hart adopted Wittgenstein’s linguistic theory to overthrow J. L. Austin’s “simple” conception of rules and habits in law, only to jettison this theory in order to locate the essence of law in its evolution from a “primal scene.” Other chapters examine the way in which the setting of English law above social relations has masked an imperial mission; how the philosophies of Hayek and Marx, as well as the discourses of liberalism, feminism, semiotics, and poststructuralism, have been assiduously marginalized and rendered inessential to jurisprudence.
Examining how Dante probes the limits of the law in this juridical otherworld, Steinberg argues that exceptions were vital to the medieval legal order and that Dante’s otherworld represents an ideal “system of exception.” In the real world, Dante saw this system as increasingly threatened by the dual crises of church and empire: the abuses and overreaching of the popes and the absence of an effective Holy Roman Emperor. Steinberg shows that Dante’s imagination of the afterlife seeks to address this gap between the universal validity of Roman law and the lack of a sovereign power to enforce it. Exploring the institutional role of disgrace, the entwined phenomena of judicial discretion and artistic freedom, medieval ideas about privilege and immunity, and the place of judgment in the poem, this cogently argued book brings to life Dante’s sense of justice.
In our current age of climate change–induced panic, it’s hard to imagine a time when private groups were not actively enforcing environmental protection laws in the courts. It wasn’t until 1972, however, that a David and Goliath–esque Supreme Court showdown involving the Sierra Club and Disney set a revolutionary legal precedent for the era of environmental activism we live in today.
Set against the backdrop of the environmental movement that swept the country in the late 1960s and early 1970s, Dawn at Mineral King Valley tells the surprising story of how the US Forest Service, the Disney company, and the Sierra Club each struggled to adapt to the new, rapidly changing political landscape of environmental consciousness in postwar America. Proposed in 1965 and approved by the federal government in 1969, Disney’s vast development plan would have irreversibly altered the practically untouched Mineral King Valley, a magnificently beautiful alpine area in the Sierra Nevada mountains. At first, the plan met with unanimous approval from elected officials, government administrators, and the press—it seemed inevitable that this expanse of wild natural land would be radically changed and turned over to a private corporation. Then the scrappy Sierra Club forcefully pushed back with a lawsuit that ultimately propelled the modern environmental era by allowing interest groups to bring litigation against environmentally destructive projects.
An expert on environmental law and appellate advocacy, Daniel P. Selmi uses his authoritative narrative voice to recount the complete history of this revolutionary legal battle and the ramifications that continue today, almost 50 years later.
This is an auto-narrated audiobook edition of this book.
The story behind the historic Mineral King Valley case, which reveals how the Sierra Club battled Disney’s ski resort development and launched a new environmental era in America.
In our current age of climate change–induced panic, it’s hard to imagine a time when private groups were not actively enforcing environmental protection laws in the courts. It wasn’t until 1972, however, that a David and Goliath–esque Supreme Court showdown involving the Sierra Club and Disney set a revolutionary legal precedent for the era of environmental activism we live in today.
Set against the backdrop of the environmental movement that swept the country in the late 1960s and early 1970s, Dawn at Mineral King Valley tells the surprising story of how the US Forest Service, the Disney company, and the Sierra Club each struggled to adapt to the new, rapidly changing political landscape of environmental consciousness in postwar America. Proposed in 1965 and approved by the federal government in 1969, Disney’s vast development plan would have irreversibly altered the practically untouched Mineral King Valley, a magnificently beautiful alpine area in the Sierra Nevada mountains. At first, the plan met with unanimous approval from elected officials, government administrators, and the press—it seemed inevitable that this expanse of wild natural land would be radically changed and turned over to a private corporation. Then the scrappy Sierra Club forcefully pushed back with a lawsuit that ultimately propelled the modern environmental era by allowing interest groups to bring litigation against environmentally destructive projects.
An expert on environmental law and appellate advocacy, Daniel P. Selmi uses his authoritative narrative voice to recount the complete history of this revolutionary legal battle and the ramifications that continue today, almost 50 years later.
Native women’s marital rights and roles in colonial Illinois society
Kaskaskia, Illinois, once the state’s capital, torn from the state by flood waters, and now largely forgotten, was once the home to a couple who helped transform the region in the 1720s from a frontier village to a civil society. In the heart of France’s North American empire, the village was a community of French-Canadian fur traders and Kaskaskia Indians who not only lived together but often intermarried. These Indigenous and French intermarriages were central to colonial Illinois society, and the coupling of Marguerite 8assecam8c8e (Dawn’s Light Woman) and Nicolas Franchomme, in particular, was critical to expanding the jurisdiction of French law.
While the story of Marguerite and Nicolas is unknown today, it is the story of how French customary law (Coutume de Paris) governed colonial marriage, how mixed Indian-French marriages stood at the very core of early colonial Illinois society, and how Illinois Indian women benefited, socially and legally, from being married to French men. All of this came about due to a lawsuit in which Nicolas successfully argued that his wife had legal claim to her first husband’s estate—a legal decision that created a precedent for society in the Illinois Country.
Within this narrative of a married couple and their legal fight—based on original French manuscripts and supported by the comprehensively annotated 1726 Illinois census—is also the story of the village of Kaskaskia during the 1720s, of the war between Fox Indians and French settlers, with their Indian allies, in Illinois, and of how the spread of plow agriculture dramatically transformed the Illinois Country’s economy from largely fur trade–based to expansively agricultural.
Many people living far away from Indian reservations express sympathy for the poverty and misery experienced by Native Americans, yet, Thomas Biolsi argues, the problems faced by Native Americans are the results of white privilege.
In Deadliest Enemies, Biolsi connects the origins of racial tension between Indians and non-Indians on the Rosebud Reservation in South Dakota to federal laws, showing how the courts have created opposing political interests along race lines. Biolsi demonstrates that the court’s definitions of legal rights—both constitutional and treaty rights—make solutions to racial tensions intractable.
This powerful work sheds much-needed light on racial conflicts in South Dakota and in the rest of the United States, and holds white people accountable for the benefits of their racial privilege that come at the expense of Native Americans.
Thomas Biolsi is professor of Native American studies at the University of California at Berkeley.
The contributors address issues such as accessibility needs; gaps regarding data collection and the need for more research; additional training for attorneys, court personnel, and prison staff; the need for more qualified sign language interpreters, including Certified Deaf Interpreters who provide services in court, prison, and juvenile facilities; substance use disorders; the school to prison nexus; and the need for advocacy. Students in training programs, researchers, attorneys, mental health professionals, sign language interpreters, family members, and advocates will be empowered by this much-needed resource to improve the experiences and outcomes for deaf people in the criminal justice system.
This book has been made possible in part by the National Endowment for the Humanities: Exploring the human endeavor. Any views, findings, conclusions, or recommendations expressed in this book do not necessarily represent those of the National Endowment for the Humanities.
Building on Pierre Bourdieu's structural approach, the authors show how an informal, settlement-oriented system became formalized and litigious. Integral to this new legal field is the intense personal competition among arbitrators to gain a reputation for virtue, hoping to be selected for arbitration panels. Since arbitration fees have skyrocketed, this is a high-stakes game.
Using multiple examples, Dezalay and Garth explore how international developments can transform domestic methods for handling disputes and analyze the changing prospects for international business dispute resolution given the growing presence of such international market and regulatory institutions as the EEC, the WTO, and NAFTA.
"A fascinating book, which I strongly recommend to all those active in international commercial arbitration, as they will see the arbitral world from new and unthought of perspectives."—Jacques Werner, Journal of International Arbitration
Drawing on real-life cases from a wide range of industries, two acclaimed experts offer a sophisticated but accessible guide to business deals, designed to maximize value for your side.
Business transactions take widely varying forms—from multibillion-dollar corporate mergers to patent licenses to the signing of an all-star quarterback. Yet every deal shares the same goal, or at least should: to maximize the joint value created and to distribute that value among the parties. Building on decades of experience teaching and advising on business deals, Michael Klausner and Guhan Subramanian show how to accomplish this goal through rigorous attention to designing incentives, conveying information, and specifying parties’ rights and obligations.
Deals captures the range of real-life transactional complexities with case studies covering Microsoft’s acquisition of LinkedIn, Scarlett Johansson’s contract dispute with Disney over the release of Black Widow, litigation surrounding LVMH’s pandemic-disrupted acquisition of Tiffany, the feud between George Norcross and Lewis Katz over ownership of the Philadelphia Inquirer, NBC/Viacom’s negotiation with Paramount over the final three seasons of Frasier, and many more. In clear, concise terms, Klausner and Subramanian establish the basic framework of negotiation and the economic concepts that must be addressed in order to maximize value. They show how to tackle challenges, such as information asymmetry between buyer and seller, moral hazard, and opportunistic behavior. And the authors lay out responses to common risks associated with long-term contracts, emphasizing that a deal’s exit rights should be carefully considered at the start of transaction design.
Unique in its practical application of economic theory to actual dealmaking, this book will be an indispensable resource for students and for professionals across the business and legal world.
In a public square in Beijing in 1904, multiple murderer Wang Weiqin was executed before a crowd of onlookers. He was among the last to suffer the extreme punishment known as lingchi. Called by Western observers “death by a thousand cuts” or “death by slicing,” this penalty was reserved for the very worst crimes in imperial China.
A unique interdisciplinary history, Death by a Thousand Cuts is the first book to explore the history, iconography, and legal contexts of Chinese tortures and executions from the tenth century until lingchi’s abolition in 1905. The authors then turn their attention to an in-depth investigation of “oriental” tortures in the Western imagination. While early modern Europeans often depicted Chinese institutions as rational, nineteenth- and twentieth-century readers consumed pictures of lingchi executions as titillating curiosities and evidence of moral inferiority. By examining these works in light of European conventions associated with despotic government, Christian martyrdom, and ecstatic suffering, the authors unpack the stereotype of innate Chinese cruelty and explore the mixture of fascination and revulsion that has long characterized the West’s encounter with “other” civilizations.
Compelling and thought-provoking, Death by a Thousand Cuts questions the logic by which states justify tormenting individuals and the varied ways by which human beings have exploited the symbolism of bodily degradation for political aims.
A death occurs at home, in a hospital, on a street: why? As Jeffrey Jentzen reveals, we often never know. Why is the American system of death investigation so inconsistent and inadequate? What can the events of the assassination of President Kennedy, killing of Bobby Kennedy, and Chappaquiddick reveal about the state of death investigation?
If communities in early America had a coroner at all, he was politically appointed and poorly trained. As medicine became more sophisticated and the medical profession more confident, physicians struggled to establish a professionalized, physician-led system of death investigation. The conflict between them and the coroners, as well as politicians and law enforcement agencies, led to the patchwork of local laws and practices that persist to this day.
In this unique political and cultural history, Jentzen draws on archives, interviews, and his own career as a medical examiner to look at the way that a long-standing professional and political rivalry controls public medical knowledge and public health.
This new edition, with an instructive and timely foreword by Ronald K. L. Collins, challenges anyone interested in the life of the law to think about where it has come from and where it is tending. As such, The Death of Contract still retains its vitality in the brave new world of the law known as contracts. A new bibliography of early reviews and new responses reveals how considerable the interest was, and continues to be, in this modern anti-classic.
More than a survey or work of advocacy, A Death of One’s Own examines the consequences and limits of the three reasons most often cited for supporting a person’s right to die: that it is justified as an expression of personal autonomy or self-ownership; that it constitutes an act of self-authorship, of “choosing a final chapter” in one’s life; and that it enables what has come to be called “death with dignity.” Probing the intersections of law and literature, Stark interweaves close discussion of major legal, political, and philosophical arguments with revealing readings of literary and testimonial texts by writers including Balzac, Melville, Benjamin, and Améry.
A thought-provoking work that will be of interest to those concerned with law and humanities, biomedical ethics, cultural history, and human rights, A Death of One’s Own opens new and suggestive paths for thinking about the history of modern death as well as the unsettled future of the right to die.
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.
At a time when the United States is undertaking an unprecedented national reconsideration of the death penalty, Death Penalty in Decline? seeks to evaluate how abolitionists might succeed today.
Contributors: John Bessler, Corinna Barrett Lain, James R. Martel, Linda Ross Meyer, Carol S. Steiker, Jordan M. Steiker, and the editor
Ute Gerhard places women's rights at the center of legal philosophy and sees the struggle for equality as a driving force in the history of law. Focusing on Europe and taking the course of German feminism and law as primary examples, she incorporates the various social contexts in which questions of equality and gender difference have been raised into an analysis that challenges misconceptions about the principle of equality itself.
Gerhard reviews the history of women's movements in the nineteenth and twentieth centuries and traces the historical development of claims to gender equality as well as obstacles to these claims. Critically exploring the influence of philosophers such as Rousseau, Fichte, and Kant, Gerhard concludes that women need to be recognized as both equal and different-that claims to equality do not simply eliminate difference, but also articulate it. Mindful of the social and political contexts surrounding equality arguments, Gerhard probes three legal issues: women's rights in the public sphere, especially the right to vote; women's legal capacities in private law, or the legal doctrine of so-called gender tutelage; and women's human rights, a prominent concern in the current international women's movement.
This lecture was presented on March 14, 2018, at the 23rd annual symposium of the Wallace Stegner Center for Land, Resources and the Environment at the S.J. Quinney College of Law, University of Utah
Rogenhofer shows how his theoretical approach allows us to reinterpret a range of crisis situations beyond the irregular migration context, including democracies’ initial responses to Covid-19, the European Sovereign Debt Crisis, and United States climate politics. These additional case studies help position concerns with decisiveness amid the challenges that populism and technocracy increasingly pose to representative democracies.
Mock trial—Roman style.
Roman secondary education aimed principally at training future lawyers and politicians. Under the late Republic and the Empire, the main instrument was an import from Greece: declamation, the making of practice speeches on imaginary subjects. There were two types of such speeches: controversiae on law-court themes, suasoriae on deliberative topics. On both types a prime source of our knowledge is the work of Lucius Annaeus Seneca, a Spaniard from Cordoba, father of the distinguished philosopher. Towards the end of his long life (?55 BC–?AD 40) he collected together ten books devoted to controversiae (some only preserved in excerpt) and at least one (surviving) of suasoriae. These books contained his memories of the famous rhetorical teachers and practitioners of his day: their lines of argument, their methods of approach, their idiosyncrasies, and above all their epigrams. The extracts from the declaimers, though scrappy, throw invaluable light on the influences that colored the styles of most pagan (and many Christian) writers of the Empire. Unity is provided by Seneca’s own contribution, the lively prefaces, engaging anecdotes about speakers, writers, and politicians, and brisk criticism of declamatory excess.
Mock trial—Roman style.
Roman secondary education aimed principally at training future lawyers and politicians. Under the late Republic and the Empire, the main instrument was an import from Greece: declamation, the making of practice speeches on imaginary subjects. There were two types of such speeches: controversiae on law-court themes, suasoriae on deliberative topics. On both types a prime source of our knowledge is the work of Lucius Annaeus Seneca, a Spaniard from Cordoba, father of the distinguished philosopher. Towards the end of his long life (?55 BC–?AD 40) he collected together ten books devoted to controversiae (some only preserved in excerpt) and at least one (surviving) of suasoriae. These books contained his memories of the famous rhetorical teachers and practitioners of his day: their lines of argument, their methods of approach, their idiosyncrasies, and above all their epigrams. The extracts from the declaimers, though scrappy, throw invaluable light on the influences that colored the styles of most pagan (and many Christian) writers of the Empire. Unity is provided by Seneca’s own contribution, the lively prefaces, engaging anecdotes about speakers, writers, and politicians, and brisk criticism of declamatory excess.
Bruce Ackerman shows how the institutional dynamics of the last half-century have transformed the American presidency into a potential platform for political extremism and lawlessness. Watergate, Iran-Contra, and the War on Terror are only symptoms of deeper pathologies. Ackerman points to a series of developments that have previously been treated independently of one another—from the rise of presidential primaries, to the role of pollsters and media gurus, to the centralization of power in White House czars, to the politicization of the military, to the manipulation of constitutional doctrine to justify presidential power-grabs. He shows how these different transformations can interact to generate profound constitutional crises in the twenty-first century—and then proposes a series of reforms that will minimize, if not eliminate, the risks going forward.
The book aims to begin a new constitutional debate. Americans should not suppose that Barack Obama’s centrism and constitutionalism will typify the presidencies of the twenty-first century. We should seize the present opportunity to confront deeper institutional pathologies before it is too late.
By bringing new interdisciplinary perspectives to issues such as the quality of citizenship and the rule of law in present-day Mexico, this book raises important issues for research on the relationship between law and gender more widely.
On April 20, 2010, the crew of the floating drill rig Deepwater Horizon lost control of the Macondo oil well forty miles offshore in the Gulf of Mexico. Escaping gas and oil ignited, destroying the rig, killing eleven crew members, and injuring dozens more. The emergency spiraled into the worst human-made economic and ecological disaster in Gulf Coast history.
Senior systems engineers Earl Boebert and James Blossom offer the most comprehensive account to date of BP’s Deepwater Horizon oil spill. Sifting through a mountain of evidence generated by the largest civil trial in U.S. history, the authors challenge the commonly accepted explanation that the crew, operating under pressure to cut costs, made mistakes that were compounded by the failure of a key safety device. This explanation arose from legal, political, and public relations maneuvering over the billions of dollars in damages that were ultimately paid to compensate individuals and local businesses and repair the environment. But as this book makes clear, the blowout emerged from corporate and engineering decisions which, while individually innocuous, combined to create the disaster.
Rather than focusing on blame, Boebert and Blossom use the complex interactions of technology, people, and procedures involved in the high-consequence enterprise of offshore drilling to illustrate a systems approach which contributes to a better understanding of how similar disasters emerge and how they can be prevented.
Long before the Supreme Court ruled that impoverished defendants in criminal cases have a right to free counsel, Philadelphia’s public defenders were working to ensure fair trials for all. In 1934, when penniless defendants were routinely railroaded through the courts without ever seeing a lawyer, Philadelphia attorney Francis Fisher Kane helped create the Voluntary Defender Association, supported by charity and free from political interference, to represent poor people accused of crime.
When the Supreme Court’s 1963 decision Gideonv. Wainwright mandated free counsel for indigent defendants, the Defender (as it is now known) became more essential than ever, representing at least 70 percent of those caught in the machinery of justice in the city. Its groundbreaking work in juvenile advocacy, homicide representation, death-row habeas corpus petitions, parole issues, and alternative sentencing has earned a national reputation.
In The Defender, Edward Madeira, past president of the Defender’s Board of Directors, and former Philadelphia Inquirer journalist Michael Schaffer chart the 80-plus-year history of the organization as it grew from two lawyers in 1934 to a staff of nearly 500 in 2015.
This is a compelling story about securing justice for those who need it most.
Although it is often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a distinctive human good. It insists, however, that this good be understood abstractly, without the state taking sides on any theological question. Here, a leading scholar of constitutional law explains the logic of this uniquely American form of neutrality—more religion-centered than liberal theorists propose, and less overtly theistic than conservatives advocate.
The First Amendment’s guarantee of freedom of religion is under threat. Growing numbers of critics, including a near-majority of the Supreme Court, seem ready to cast aside the ideal of American religious neutrality. Andrew Koppelman defends that ideal and explains why protecting religion from political manipulation is imperative in an America of growing religious diversity.
Understanding American religious neutrality, Koppelman shows, can explain some familiar puzzles. How can Bible reading in public schools be impermissible while legislative sessions begin with prayers, Christmas is an official holiday, and the words “under God” appear in the Pledge of Allegiance? Are faith-based social services, public financing of religious schools, or the teaching of intelligent design constitutional? Combining legal, historical, and philosophical analysis, Koppelman shows how law coherently navigates these conundrums. He explains why laws must have a secular legislative purpose, why old, but not new, ceremonial acknowledgments of religion are permitted, and why it is fair to give religion special treatment.
Even as lawsuits challenging its admissions policies made their way through the courts, the University of Michigan carried the torch for affirmative action in higher education.
In June 2003, the Supreme Court vindicated UM's position on affirmative action when it ruled that race may be used as a factor for universities in their admissions programs, thus confirming what the UM had argued all along: diversity in the classroom translates to a beneficial and wide-ranging social value. With the green light given to the law school's admissions policies, Defending Diversity validates the positive benefits gained by students in a diverse educational setting.
Written by prominent University of Michigan faculty, Defending Diversity is a timely response to the court's ruling. Providing factual background, historical setting, and the psychosocial implications of affirmative action, the book illuminates the many benefits of a diverse higher educational setting -- including preparing students to be full participants in a pluralistic democracy -- and demonstrates why affirmative action is necessary to achieve that diversity.
Defending Diversity is a significant contribution to the ongoing discussion on affirmative action in higher education. Perhaps more important, it is a valuable record of the history, events, arguments, and issues surrounding the original lawsuits and the Supreme Court's subsequent ruling, and helps reclaim the debate from those forces opposed to affirmative action.
Patricia Gurin is Professor Emerita, Department of Psychology, University of Michigan. Jeffrey S. Lehman, former Dean of the University of Michigan Law School, is President of Cornell University. Earl Lewis is Dean of Rackham Graduate School, University of Michigan.
Defending the Environment provides the means for nongovernmental organizations, community groups, and individuals to bring environmental and public health problems to the attention of international courts, tribunals, and commissions, or to their domestic counterparts. It suggests specific strategies and provides detailed information for taking action. This revised and updated edition also contains new case studies of the application of those strategies that has occurred in recent years.
Each chapter provides a description of the institutional mechanisms that can potentially receive, review, and remedy the alleged violation, along with a set of guidelines that explain how the reader can employ a particular strategy, and an example that indicates the effectiveness of a given strategy. In addition, the book offers an appendix that lists individuals and organizations who can assist with the various strategies described.
Defending the Environment represents the first concise, comprehensive guide to international environmental law and institutions that offers readers hands-on strategies for addressing environmental and public health problems.
Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin's progressive senator Robert La Follette since their law partnership as young men, Roe defended "Fighting Bob" when the Senate tried to expel him for opposing America's entry into World War I.
In articulating and upholding Americans' fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.
In Defining Reality, Edward Schiappa argues that definitional disputes should be treated less as philosophical questions of “is”and more as sociopolitical questions of “ought.” Instead of asking “What is X?” he advocates that definitions be considered as proposals for shared knowledge and institutional norms, as in “What should count as X in context Y, given our needs and interests?”
Covering a broad scope of argument in rhetorical theory, as well as in legal, medical, scientific, and environmental debates, Schiappa shows the act of defining to be a specialized and learned behavior, and therefore one that can be studied and improved. In response to theories that deem discourse to be persuasive, the author asserts that all discourse is definitive discourse that contributes to our construction of a shared reality.
Defining Reality sheds light on our methods of creating common truths through language and argumentation and forces us to reconsider the contexts, limitations, and adaptability of our definitions. Hinging on a synthesis of arguments regarding the significance of definitional practices, the book is bolstered by a series of case studies of debates about rape, euthanasia, abortion, and political and environmental issues. These case studies ground Schiappa’s concepts in reality and delineate the power of public discourse within legal contexts. Ranging widely among disciplines from philosophy and classical philology to constitutional law and cognitive psychology, this study substantially contributes to the scholarship of rhetoric and argumentation, particularly as they function in the realm of public discourse.
As Louisiana and Cuba emerged from slavery in the late nineteenth century, each faced the question of what rights former slaves could claim. Degrees of Freedom compares and contrasts these two societies in which slavery was destroyed by war, and citizenship was redefined through social and political upheaval. Both Louisiana and Cuba were rich in sugar plantations that depended on an enslaved labor force. After abolition, on both sides of the Gulf of Mexico, ordinary people—cane cutters and cigar workers, laundresses and labor organizers—forged alliances to protect and expand the freedoms they had won. But by the beginning of the twentieth century, Louisiana and Cuba diverged sharply in the meanings attributed to race and color in public life, and in the boundaries placed on citizenship.
Louisiana had taken the path of disenfranchisement and state-mandated racial segregation; Cuba had enacted universal manhood suffrage and had seen the emergence of a transracial conception of the nation. What might explain these differences?
Moving through the cane fields, small farms, and cities of Louisiana and Cuba, Rebecca Scott skillfully observes the people, places, legislation, and leadership that shaped how these societies adjusted to the abolition of slavery. The two distinctive worlds also come together, as Cuban exiles take refuge in New Orleans in the 1880s, and black soldiers from Louisiana garrison small towns in eastern Cuba during the 1899 U.S. military occupation.
Crafting her narrative from the words and deeds of the actors themselves, Scott brings to life the historical drama of race and citizenship in postemancipation societies.
Over the past decade and a half, girls’ involvement in the juvenile justice system has increased. Yet the topic remains under-studied among criminologists. The Delinquent Girl is a “state-of-the-field” evaluation that identifies and analyzes girls who become delinquent, the kinds of crimes they commit and the reasons they commit them. The distinguished academics and practitioners who contributed to this volume provide an overview of the research on girls’ delinquency, discuss policy implications and point to areas where further research is critically needed.
Cary Federman takes a more sympathetic approach to sex offender legislation. He focuses on the deliberative intentions of legislators, exploring the limits of judicial review and the rights of interested parties to influence lawmaking. Leaders of these interested parties are usually the parents of children who have been sexually violated and murdered. Critics of sex offender legislation tend to focus on the convicted parties, arguing that their rights have been violated. Democracy and Deliberation asserts that these laws are expressions of the deliberative intentions of lawmakers concerned about public safety—they are thus constitutional, if not always wise.
This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life?
Until now legal experts have proposed two basic approaches to the Constitution. The first, “interpretivism,” maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. John Hart Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today.
Ely’s proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. “The Constitution,” he writes, “has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone’s interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.”
Thus, Ely’s emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism’s rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels—from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.
Democracy and Dysfunction brings together two of the leading constitutional law scholars of our time, Sanford Levinson and Jack M. Balkin, in an urgently needed conversation that seeks to uncover the underlying causes of our current crisis and their meaning for American democracy. In a series of letters exchanged over a period of two years, Levinson and Balkin travel—along with the rest of the country—through the convulsions of the 2016 election and Trump’s first year in office. They disagree about the scope of the crisis and the remedy required. Levinson believes that our Constitution is fundamentally defective and argues for a new constitutional convention, while Balkin, who believes we are suffering from constitutional rot, argues that there are less radical solutions. As it becomes dangerously clear that Americans—and the world—will be living with the consequences of this pivotal period for many years to come, it is imperative that we understand how we got here—and how we might forestall the next demagogue who will seek to beguile the American public.
In Democracy Declined, Mallory E. SoRelle argues that the failure of federal policy makers to curb risky practices can be explained by the evolution of consumer finance policies aimed at encouraging easy credit in part by foregoing more stringent regulation. Furthermore, SoRelle explains how angry borrowers’ experiences with these policies teach them to focus their attention primarily on banks and lenders instead of demanding that lawmakers address predatory behavior. As a result, advocacy groups have been mostly unsuccessful in mobilizing borrowers in support of stronger consumer financial protections. The absence of safeguards on consumer financing is particularly dangerous because the consequences extend well beyond harm to individuals—they threaten the stability of entire economies. SoRelle identifies pathways to mitigate these potentially disastrous consequences through greater public participation.
The difference between developmental success and failure in this view has little to do with natural resource availability, climate, aid, or developed nations' policies. Rather, it is largely a function of whether incentives within a given society steer wealth-maximizing individuals toward producing new wealth or toward diverting it from others. The chapters, seminal essays written by Mancur Olson and his IRIS Center colleagues, provide theoretical and/or empirical underpinnings for the emerging consensus that differences in the way governments and societies are organized have enormous implications for the structure of incentives faced by politicians, bureaucrats, investors, and workers, which in turn determines the level of a nation's material well-being.
Overall this volume applies tools and concepts from the "New Institutional Economics" to some of the major issues in economic development. It will be of interest to scholars and students of various disciplines--including political science, law, and sociology as well as economics--interested in the determinants of economic development and global economic change. The book will also be of interest to many aid practitioners, particularly those working in anticorruption and public sector reform issues.
Stephen Knack is Senior Research Economist, Development Research Group, the World Bank.
For more than 200 years no institution has been more important to the development of the American democratic polity than the state legislature, yet no political institution has been so neglected by historians. Although more lawmaking takes place in the state capitals than in Washington D.C., scholars have lavished their attention on Congress, producing only a handful of histories of state legislatures. Most of those histories have focused on discrete legislative acts rather than on legislative process, and all have slighted key aspects of the legislative environment: the parliamentary rules of play, the employees who make the game possible, the physical setting—the arena—in which the people’s representatives engage in conflict and compromise to create public policy.
This book relates in fascinating detail the history of the Ohio General Assembly from its eighteenth-century origins in the Northwest Territory to its twenty-first-century incarnation as a full-time professional legislature. Democracy in Session explains the constitutional context within which the General Assembly functions, examines the evolution of legislative committees, and explores the impact of technology on political contests and legislative procedure. It sheds new light on the operations of the House and Senate clerks’ offices and on such legislative rituals as seat selection, opening prayers, and the Pledge of Allegiance. Partisan issues and public policy receive their due, but so do ethics and decorum, the election of African American and female legislators, the statehouse, and the social life of the members. Democracy in Session is, in short, the most comprehensive history of a state legislature written to date and an important contribution to the story of American democracy.
Allen utilizes historical, philosophical, sociological, and legal sources to trace America's gradual embrace of corporate values. He argues that such values, including winning, efficiency, and profitability actually limit democratic involvement by devaluing discursive principles, creating an informed yet inactive public. Through an examination of professionalization in both the press and the law, corporate free speech rights, and free speech as property, Democracy, Inc. demonstrates that today's democracy is more about trying to control and manage citizens than giving them the freedom to participate. Allen not only calls on institutions to reform the way they understand and promote citizenship but also asks citizens to adopt a new ethic of public discourse that values understanding rather than winning.
Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice.
The democratic legal system created by the Athenians was completely controlled by ordinary citizens, with no judges, lawyers, or jurists involved. It placed great importance on the litigants’ rhetorical performances. Did this make it nothing more than a rhetorical contest judged by largely uneducated citizens that had nothing to do with law, a criticism that some, including Plato, have made?
Michael Gagarin argues to the contrary, contending that the Athenians both controlled litigants’ performances and incorporated many other unusual features into their legal system, including rules for interrogating slaves and swearing an oath. The Athenians, Gagarin shows, adhered to the law as they understood it, which was a set of principles more flexible than our current understanding allows. The Athenians also insisted that their legal system serve the ends of justice and benefit the city and its people. In this way, the law ultimately satisfied most Athenians and probably produced just results as often as modern legal systems do. Comprehensive and wide-ranging, Democratic Law in Classical Athens offers a new perspective for viewing a legal system that was democratic in a way only the Athenians could achieve.
“In Denaturalized, Claire Zalc combines the precision of the scholar with the passion of a storyteller…This is a deftly written book. Zalc combines in an accessible style (smoothly translated by Catherine Porter) the stories of people trapped within a bureaucracy that was as obsessed, perhaps, with clearing files as with hunting Jews. In other words, Zalc reminds us how cruel the banality of indifference could be.”—Wall Street Journal
Winner of the Prix d’histoire de la justice
A leading historian radically revises our understanding of the fate of Jews under the Vichy regime.
Thousands of naturalized French men and women had their citizenship revoked by the Vichy government during the Second World War. Once denaturalized, these men and women, mostly Jews who were later sent to concentration camps, ceased being French on official records and walked off the pages of history. As a result, we have for decades severely underestimated the number of French Jews murdered by Nazis during the Holocaust. In Denaturalized, Claire Zalc unearths this tragic record and rewrites World War II history.
At its core, this is a detective story. How do we trace a citizen made alien by the law? How do we solve a murder when the body has vanished? Faced with the absence of straightforward evidence, Zalc turned to the original naturalization papers in order to uncover how denaturalization later occurred. She discovered that, in many cases, the very officials who granted citizenship to foreigners before 1940 were the ones who retracted it under Vichy rule.
The idea of citizenship has always existed alongside the threat of its revocation, and this is especially true for those who are naturalized citizens of a modern state. At a time when the status of millions of naturalized citizens in the United States and around the world is under greater scrutiny, Denaturalized turns our attention to the precariousness of the naturalized experience—the darkness that can befall those who suddenly find themselves legally cast out.
The danger of deportation hangs over the head of virtually every noncitizen in the United States. In the complexities and inconsistencies of immigration law, one can find a reason to deport almost any noncitizen at almost any time. In recent years, the system has been used with unprecedented vigor against millions of deportees.
We are a nation of immigrants--but which ones do we want, and what do we do with those that we don't? These questions have troubled American law and politics since colonial times.
Deportation Nation is a chilling history of communal self-idealization and self-protection. The post-Revolutionary Alien and Sedition Laws, the Fugitive Slave laws, the Indian "removals," the Chinese Exclusion Act, the Palmer Raids, the internment of the Japanese Americans--all sought to remove those whose origins suggested they could never become "true" Americans. And for more than a century, millions of Mexicans have conveniently served as cheap labor, crossing a border that was not official until the early twentieth century and being sent back across it when they became a burden.
By illuminating the shadowy corners of American history, Daniel Kanstroom shows that deportation has long been a legal tool to control immigrants' lives and is used with increasing crudeness in a globalized but xenophobic world.
Whether investigating the power that individual and corporate sponsors have over the fate of foreign laborers in Bahrain, the implications of Germany’s temporary suspension of deportation orders for pregnant and ill migrants, or the significance of the detention camp, the contributors reveal how deportation reflects and reproduces notions about public health, racial purity, and class privilege. They also provide insight into how deportation and deportability are experienced by individuals, including Arabs, South Asians, and Muslims in the United States. One contributor looks at asylum claims in light of an unusual anti-deportation campaign mounted by Algerian refugees in Montreal; others analyze the European Union as an entity specifically dedicated to governing mobility inside and across its official borders. The Deportation Regime addresses urgent issues related to human rights, international migration, and the extensive security measures implemented by nation-states since September 11, 2001.
Contributors: Rutvica Andrijasevic, Aashti Bhartia, Heide Castañeda , Galina Cornelisse , Susan Bibler Coutin, Nicholas De Genova, Andrew M. Gardner, Josiah Heyman, Serhat Karakayali, Sunaina Marr Maira, Guillermina Gina Nuñez, Peter Nyers, Nathalie Peutz, Enrica Rigo, Victor Talavera, William Walters, Hans-Rudolf Wicker, Sarah S. Willen
Gëzim Visoka argues that state derecognition is a highly controversial and unstable practice that has less to do with the unfulfillment of the conditions of statehood by the claimant than with the advancement of the self-interest of the former base state and derecognizing state. The derecognition of states is not a rule; rather, it is an exception in international diplomacy, driven by political expediency and is incompatible with original rationales for granting recognition. Yet, the derecognition of states is far more important than previously recognized in shaping the reversal dynamics of secession and state creation and in influencing regional peace, geopolitical rivalries, and the international order. By analyzing the withdrawal of recognition, the book offers a window into the reversal politics of unbecoming a sovereign state and how the arbitrary beginning and the end of diplomatic relations between states take place.
Following a vast expansion in the twentieth century, government is beginning to creak at the joints under its enormous weight. The signs are clear: a bloated civil service, low approval ratings for Congress and the President, increasing federal-state conflict, rampant distrust of politicians and government officials, record state deficits, and major unrest among public employees.
In this compact, clearly written book, the noted legal scholar Richard Epstein advocates a much smaller federal government, arguing that our over-regulated state allows too much discretion on the part of regulators, which results in arbitrary, unfair decisions, rent-seeking, and other abuses. Epstein bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights—an overarching structure that allows private property to keep its form regardless of changes in population, tastes, technology, and wealth. This structure also makes possible a restrained public administration to implement limited objectives. Government continues to play a key role as night-watchman, but with the added flexibility in revenues and expenditures to attend to national defense and infrastructure formation.
Although no legal system can eliminate the need for discretion in the management of both private and public affairs, predictable laws can cabin the zone of discretion and permit arbitrary decisions to be challenged. Joining a set of strong property rights with sound but limited public administration could strengthen the rule of law, with its virtues of neutrality, generality, clarity, consistency, and forward-lookingness, and reverse the contempt and cynicism that have overcome us.
"Hobbes students are indebted to Professor Cropsey for this scholarly and accessible edition of Dialogue."—J. Roland Pennock, American Political Science Review
"An invaluable aid to the study of Hobbes."—Review of Metaphysics
Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of such laws on the exchange of information in a free society? Litman’s critique exposes the 1998 copyright law as an incoherent patchwork. She argues for reforms that reflect the way people actually behave in their daily digital interactions.
The Maize Books edition includes both an afterword written in 2006 exploring the rise of peer-to-peer file sharing and a new Postscript reflecting on the consequences of the Digital Millennium Copyright Act as it nears its twentieth birthday.
With The Dignity of Commerce, Nathan B. Oman argues persuasively that well-functioning markets are morally desirable in and of themselves and thus a fit object of protection through contract law. Markets, Oman shows, are about more than simple economic efficiency. To do business with others, we must demonstrate understanding of and satisfy their needs. This ability to see the world from another’s point of view inculcates key virtues that support a liberal society. Markets also provide a context in which people can peacefully cooperate in the absence of political, religious, or ideological agreement. Finally, the material prosperity generated by commerce has an ameliorative effect on a host of social ills, from racial discrimination to environmental destruction.
The first book to place the moral status of the market at the center of the justification for contract law, The Dignity of Commerce is sure to elicit serious discussion about this central area of legal studies.
In Dilemma of Duties, Corbin outlines patterns of role conflict that defenders experience, details its impact on counselors and clients in the juvenile justice system, and addresses the powerful influence of the juvenile court culture and the lack of resources for defenders. Tasked with guiding these children, counselors frequently must contend with and manage their clients’ general distrust of adults as they attempt to serve as their voices to the court.
Understanding how juvenile defenders define their role and experience role conflict provides valuable insights into our juvenile justice system, especially its role in upholding due process rights. Such knowledge points to the importance of the training and practices of juvenile court functionaries and the efficacy, credibility, and legitimacy of the juvenile justice system itself.
Following on the heels of other Civil Rights movements, disability rights laws emerged in the late 1960s and early 1970s. Often these laws were more symbolic than precise in terms of objectives and strategies to guide the implementation of antidiscrimination policies. Policy refinement, the process of translating legislative mandates into strategies and procedures to govern administrative action, is both dynamic and controversial.
The premise of Disability, Civil Rights, and Public Policy is that implementation policies in these areas evolved through protracted political struggles among a variety of persons and groups affected by disability rights laws. Efforts to influence policies extended far beyond the process of legislative enactment and resulted in struggles that were played out in the courts and in the executive branch. Included within this examination of federal disability rights laws are the role of symbolic politics, the strengths and weaknesses of contemporary models used for the study of policy implementation, and the politics of administrative policymaking.
Bruce J. Dierenfield and David A. Gerber use the Zobrests' story to examine the complex history and jurisprudence of disability accommodation and educational mainstreaming. They look at the family's effort to acquire educational resources for their son starting in early childhood and the choices the Zobrests made to prepare him for life in the hearing world rather than the deaf community. Dierenfield and Gerber also analyze the thorny church-state issues and legal controversies that informed the case, its journey to the U.S. Supreme Court, and the impact of the high court's ruling on the course of disability accommodation and religious liberty.
The Americans with Disabilities Act (ADA) of 1990 was intended to send a clear message to society that discrimination on the basis of disability is unacceptable. As with most civil rights laws, the courts were given primary responsibility for implementing disability rights policy.
Mezey argues that the act has not fulfilled its potential primarily because of the judiciary's "disabling interpretations" in adjudicating ADA claims. In the decade of litigation following the enactment of the ADA, judicial interpretation of the law has largely constricted the parameters of disability rights and excluded large numbers of claimants from the reach of the law. The Supreme Court has not interpreted the act broadly, as was intended by Congress, and this method of decision making was for the most part mirrored by the courts below. The high court's rulings to expand state sovereign immunity and insulate states from liability in damage suits has also caused claimants to become enmeshed in litigation and has encouraged defendants to challenge other laws affecting disability rights. Despite the law's strong civil rights rhetoric, disability rights remain an imperfectly realized goal.
The first book to focus exclusively on the discourses of police interviewing, The Discourse of Police Interviews examines leading debates, approaches, and topics in contemporary police interview research. Among other topics, the book explores the sociolegal, psychological, and discursive framework of popular police interview techniques employed in the United States and the United Kingdom, such as PEACE and Reid, and the discursive practices of institutional representatives like police officers and interpreters that can influence the construction and quality of linguistic evidence. Together, the contributions situate the police interview as part of a complex, and multistage, criminal justice process. The book will be of interest to both scholars and practitioners in a variety of fields, such as linguistic anthropology, interpreting studies, criminology, law, and sociology.
Prominent observers complain that public discourse in America is shallow and unedifying. This debased condition is often attributed to, among other things, the resurgence of religion in public life. Steven Smith argues that this diagnosis has the matter backwards: it is not primarily religion but rather the strictures of secular rationalism that have drained our modern discourse of force and authenticity.
Thus, Rawlsian “public reason” filters appeals to religion or other “comprehensive doctrines” out of public deliberation. But these restrictions have the effect of excluding our deepest normative commitments, virtually assuring that the discourse will be shallow. Furthermore, because we cannot defend our normative positions without resorting to convictions that secular discourse deems inadmissible, we are frequently forced to smuggle in those convictions under the guise of benign notions such as freedom or equality.
Smith suggests that this sort of smuggling is pervasive in modern secular discourse. He shows this by considering a series of controversial, contemporary issues, including the Supreme Court’s assisted-suicide decisions, the “harm principle,” separation of church and state, and freedom of conscience. He concludes by suggesting that it is possible and desirable to free public discourse of the constraints associated with secularism and “public reason.”
The Disenfranchisement of Ex-Felons provides a comprehensive overview of the history, nature, and far-reaching sociological and political consequences of denying ex-felons the right to vote. Readers learn state practices in Florida and Ohio during the 2000 and 2004 presidential elections; arguments that have been used in court houses, legislatures, and the press to justify such practices; and attempts to reverse legislation through state and federal governments. In a timely appendix to the 2004 election, Elizabeth Hull makes her case that the battle for civil rights will not be won unless ex-felons, who have fulfilled their obligations to society, are restored the same rights afforded all other American citizens.
The insanity defense is considered one of the most controversial, most misunderstood, and least straightforward subjects in the American legal system. Disorder in the Court: Morality, Myth, and the Insanity Defense traces the US legal standards for the insanity defense as they have evolved from 1843, when they were first codified in England, to 1984, when the US government attempted to revise them through the Insanity Defense Reform Act. Throughout this period “insanity” existed primarily as a legal term rather than a medical one; yet the testimony of psychiatric experts is required in cases in which an insanity defense is raised.
The adjudication of such cases by courtroom practice is caught between two different but overlapping discourses, the legal and the medical, both of which have historically sought to assert and maintain firm disciplinary boundaries. Both expert and lay audiences have struggled to understand and apply commonplace definitions of sanity, and the portrayal of the insanity defense in popular culture has only served to further frustrate such understandings.
Andrea L. Alden argues that the problems with understanding the insanity defense are, at their foundation, rhetorical. The legal concept of what constitutes insanity and, therefore, an abdication of responsibility for one’s actions does not map neatly onto the mental health professions’ understandings of mental illness and how that affects an individual’s ability to understand or control his or her actions. Additionally, there are multiple layers of persuasion involved in any effort to convince a judge, jury—or a public, for that matter—that a defendant is or is not responsible for his or her actions at a particular moment in time.
Alden examines landmark court cases such as the trial of Daniel McNaughtan, Durham v. United States, and the trial of John Hinckley Jr. that signal the major shifts in the legal definitions of the insanity defense. Combining archival, textual, and rhetorical analysis, Alden offers a close reading of texts including trial transcripts, appellate court opinions, and relevant medical literature from the time period. She contextualizes these analyses through popular texts—for example, newspaper articles and editorials—showing that while all societies have maintained some version of mental illness as a mitigating factor in their penal systems, the insanity defense has always been fraught with controversy.
Athenians performed democracy daily in their law courts. Without lawyers or judges, private citizens, acting as accusers and defendants, argued their own cases directly to juries composed typically of 201 to 501 jurors, who voted on a verdict without deliberation. This legal system strengthened and perpetuated democracy as Athenians understood it, for it emphasized the ideological equality of all (male) citizens and the hierarchy that placed them above women, children, and slaves.
This study uses Athenian court speeches to trace the consequences for both disputants and society of individuals' decisions to turn their quarrels into legal cases. Steven Johnstone describes the rhetorical strategies that prosecutors and defendants used to persuade juries and shows how these strategies reveal both the problems and the possibilities of language in the Athenian courts. He argues that Athenian "law" had no objective existence outside the courts and was, therefore, itself inherently rhetorical. This daring new interpretation advances an understanding of Athenian democracy that is not narrowly political, but rather links power to the practices of a particular institution.
While dissent has played a central role in our national history and in the American cultural imagination, it is usually dangerous to those who practice it, and always unpalatable to its targets. War does not encourage the tolerance of opposition at home any more than it does on the front: if the War on Terror is to be a permanent war, then the consequences for American political freedoms cannot be overestimated.
"Dissent in Dangerous Times examines the nature of political repression in liberal societies, and the political and legal implications of living in an environment of fear. This profound, incisive, at times even moving volume calls upon readers to think about, and beyond, September 11, reminding us of both the fragility and enduring power of freedom."
--Nadine Strossen, President, American Civil Liberties Union, and Professor of Law, New York Law School.
Contributors to this volume
Lauren Berlant
Wendy Brown
David Cole
Hugh Gusterson
Nancy L. Rosenblum
Austin Sarat
Between loyalty and disobedience; between recognition of the law’s authority and realization that the law is not always right: In America, this conflict is historic, with results as glorious as the mass protests of the civil rights movement and as inglorious as the armed violence of the militia movement. In an impassioned defense of dissent, Stephen L. Carter argues for the dialogue that negotiates this conflict and keeps democracy alive. His book portrays an America dying from a refusal to engage in such a dialogue, a polity where everybody speaks, but nobody listens.
The Dissent of the Governed is an eloquent diagnosis of what ails the American body politic—the unwillingness of people in power to hear disagreement unless forced to—and a prescription for a new process of response. Carter examines the divided American political character on dissent, with special reference to religion, identifying it in unexpected places, with an eye toward amending it before it destroys our democracy.
At the heart of this work is a rereading of the Declaration of Independence that puts dissent, not consent, at the center of the question of the legitimacy of democratic government. Carter warns that our liberal constitutional ethos—the tendency to assume that the nation must everywhere be morally the same—pressures citizens to be other than themselves when being themselves would lead to disobedience. This tendency, he argues, is particularly hard on religious citizens, whose notion of community may be quite different from that of the sovereign majority of citizens. His book makes a powerful case for the autonomy of communities—especially but not exclusively religious—into which democratic citizens organize themselves as a condition for dissent, dialogue, and independence. With reference to a number of cases, Carter shows how disobedience is sometimes necessary to the heartbeat of our democracy—and how the distinction between challenging accepted norms and challenging the sovereign itself, a distinction crucial to the Declaration of Independence, must be kept alive if Americans are to progress and prosper as a nation.
During the period from 1836 to 1874, the legal system in the new state of Arkansas developed amid huge social change. While the legislature could, and did, determine what issues were considered of importance to the populace, the Arkansas Supreme Court determined the efficacy of legislation in cases involving land titles, banks, transportation, slavery, family law, property, debt, contract, criminal law, and procedure.
Distinguishing the Righteous from the Roguish examines the court’s decisions in this era and shows how Arkansas, as a rural slave-holding state, did not follow the transformational patterns typical of some other states during the nineteenth century. Rather than using the law to promote broad economic growth and encourage social change, the Arkansas court attempted to accommodate the interests of the elite class by preserving the institution of slavery. The ideology of paternalism is reflected in the decisions of the court, and Looney shows how social and political stability—an emphasis on preserving the status quo of the so-called “righteous”—came at the expense of broader economic development.
Scholars have argued for years that this common view of the depraved ruin of our civil legal system is a myth, but their research and statistics rarely make the news. William Haltom and Michael McCann here persuasively show how popularized distorted understandings of tort litigation (or tort tales) have been perpetuated by the mass media and reform proponents. Distorting the Law lays bare how media coverage has sensationalized lawsuits and sympathetically portrayed corporate interests, supporting big business and reinforcing negative stereotypes of law practices.
Based on extensive interviews, nearly two decades of newspaper coverage, and in-depth studies of the McDonald's coffee case and tobacco litigation, Distorting the Law offers a compelling analysis of the presumed litigation crisis, the campaign for tort law reform, and the crucial role the media play in this process.
Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges—at the risk of intellectual stagnation—to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.
The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.
Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.
America is the first society in history to make ethno-racial diversity an affirmative social ideal rather than viewing it as a fearful menace, as almost all other societies still do. Since the 1960s, America has pursued this ideal in many forms—not only to remedy past discrimination against minorities but also to increase diversity for its own sake.
It is high time for an accounting. How diverse are we now and what can we expect in the future? Why do we, unlike the rest of the world, think that diversity is desirable and that more of it is better? What risks does diversity pose? What are the roles of law, politics, and informal social controls in promoting diversity? How can we manage diversity better?
In this magisterial book, Peter H. Schuck explains how Americans have understood diversity, how we came to embrace it, how the government regulates it now, and how we can do better. He mobilizes a wealth of conceptual, historical, legal, political, and sociological analysis to argue that diversity is best managed not by the government but by families, ethnic groups, religious communities, employers, voluntary organizations, and other civil society institutions. Analyzing some of the most controversial policy arenas where politics and diversity intersect—immigration, multiculturalism, language, affirmative action, residential neighborhoods, religious practices, faith-based social services, and school choice—Schuck reveals the conflicts, trade-offs, and ironies entailed by our commitment to the diversity ideal. He concludes with recommendations to help us manage the challenge of diversity in the future.
A case history of the only American film under court-imposed restrictions for reasons other than obscenity or national security.
Titicut Follies is an excoriating depiction of conditions in the Massachusetts Correctional Institution at Bridgewater, a prison-hospital for the criminally insane. The Commonwealth of Massachusetts took Wiseman to court, seeking to prevent the exhibition of Titicut Follies soon after its release in 1967.
This account of the Titicut Follies case is based on ten years of research and relies on interviews, journalistic accounts, and especially on the legal record, including the Commonwealth v. Wiseman transcript, to describe the entire process of independent documentary filmmaking. The trials of Titicut Follies raise crucial questions about the relation of social documentary to its subjects and audiences.
of public policy actions, political speeches, and judicial decisions related to the American
Civil War. Collectively, the four volumes in this series give scholars, teachers, and students
easy access to the full texts of the most important, fundamental documents as well as hardto-
find, rarely published primary sources on this critical period in U.S. history.
The first two volumes of the series, Legislative Achievements and Political Arguments,
were released last year. The final installment, Judicial Decisions, is divided into two volumes.
The first volume, spanning the years 1857 to 1866, was released last year. This second
volume of Judicial Decisions covers the years 1867 to 1896. Included here are some of
the classic judicial decisions of this time such as the 1869 decision in Texas v. White and
the first judicial interpretation of the 1868 Fourteenth Amendment, the 1873 Slaughter-
House Cases. Other decisions are well known to specialists but deserve wider readership
and discussion, such as the 1867 state and 1878 federal cases that upheld the separation of
the races in public accommodations (and thus constituted the common law of common
commerce) long before the more notorious 1896 case of Plessy v. Ferguson (also included).
These judicial voices constitute a lasting and often overlooked aspect of the age of Abraham
Lincoln. Mackey’s headnotes and introductory essays situate cases within their historical
context and trace their lasting significance. In contrast to decisions handed down
during the war, these judicial decisions lasted well past their immediate political and legal
moment and deserve continued scholarship and scrutiny.
This document collection presents the raw “stuff” of the Civil War era so that students,
scholars, and interested readers can measure and gauge how that generation met Lincoln’s
challenge to “think anew, and act anew.” A Documentary History of the American Civil
War Era is an essential acquisition for academic and public libraries in addition to being a
valuable resource for courses on the Civil War and Reconstruction, legal history, political
history, and nineteenth-century American history.
This is the first of three volumes documenting Rhode Island's public and private debates about the Constitution. This documentary series is a research tool of remarkable power, an unrivaled reference work for historical and legal scholars, librarians, and students of the Constitution. The volumes are encyclopedic, consisting of manuscript and printed documents-contemporary newspapers, broadsides, and pamphlets-compiled from hundreds of sources, copiously annotated, thoroughly indexed, and often accompanied by microfiche supplements. Pulitzer Prize-winning historian Michael Kammen has noted that The Documentary History of the Ratification of the Constitution series "will be of enduring value centuries hence" and described it as "one of the most interesting documentary publications we have ever had." The American Bar Association Journal has stated, "Each new volume now fills another vital part of the mosaic of national history."
Pulitzer Prize-winning historian Michael Kammen has noted that The Documentary History of the Ratification of the Constitution series "will be of enduring value centuries hence" and described it as "one of the most interesting documentary publications we have ever had." The American Bar Association Journal has stated, "Each new volume now fills another vital part of the mosaic of national history."
Doing the Right Thing examines the use of extraordinary legislative procedures in four cases in the U.S. Congress to accomplish policy objectives that many political scientists would argue are impossible to achieve. It not only shows that Congress is capable of imposing parochial costs in favor of general benefits but it argues that Congress is able to do so in a variety of policy areas through the use of very different kinds of procedural mechanisms that are underappreciated.
The book opens by developing a theory of procedural choice to explain why Congress chooses to delegate in differing degrees in dealing with similar kinds of policy problems. The theory is then applied to four narrative case studies—military base closures, the Yucca Mountain Project, NAFTA, and the Tax Reform Act of 1986—that both show the variety of factors that impact procedural choice and highlight how our national legislature was able to “do the right thing.”
The book concludes by pointing to the variety of ways in which Congress will be confronted with similar policy problems in the coming years and offering some lessons from these cases about what kinds of procedures and policy outcomes we might expect. In short, Congress is remarkably adept at “doing the right thing,” even under difficult circumstances, but only when legislators are willing to manipulate procedures in all the necessary ways.
-Katherine S. Newman
"Doing Time on the Outside brings to life in a compelling way the human drama, and tragedy, of our incarceration policies. Donald Braman documents the profound economic and social consequences of the American policy of massive imprisonment of young African American males. He shows us the link between the broad-scale policy changes of recent decades and the isolation and stigma that these bring to family members who have a loved one in prison. If we want to understand fully the impact of current criminal justice policies, this book should be required reading."
-Mark Mauer, Assistant Director, The Sentencing Project
"Through compelling stories and thoughtful analysis, this book describes how our nation's punishment policies have caused incalculable damage to the fabric of family and community life. Anyone concerned about the future of urban America should read this book."
-Jeremy Travis, The Urban Institute
In the tradition of Elijah Anderson's Code of the Street and Katherine Newman's No Shame in My Game, this startling new ethnography by Donald Braman uncovers the other side of the incarceration saga: the little-told story of the effects of imprisonment on the prisoners' families.
Since 1970 the incarceration rate in the United States has more than tripled, and in many cities-urban centers such as Washington, D.C.-it has increased over five-fold. Today, one out of every ten adult black men in the District is in prison and three out of every four can expect to spend some time behind bars. But the numbers don't reveal what it's like for the children, wives, and parents of prisoners, or the subtle and not-so-subtle effects mass incarceration is having on life in the inner city.
Author Donald Braman shows that those doing time on the inside are having a ripple effect on the outside-reaching deep into the family and community life of urban America. Braman gives us the personal stories of what happens to the families and communities that prisoners are taken from and return to. Carefully documenting the effects of incarceration on the material and emotional lives of families, this groundbreaking ethnography reveals how criminal justice policies are furthering rather than abating the problem of social disorder. Braman also delivers a number of genuinely new arguments.
Among these is the compelling assertion that incarceration is holding offenders unaccountable to victims, communities, and families. The author gives the first detailed account of incarceration's corrosive effect on social capital in the inner city and describes in poignant detail how the stigma of prison pits family and community members against one another. Drawing on a series of powerful family portraits supported by extensive empirical data, Braman shines a light on the darker side of a system that is failing the very families and communities it seeks to protect.
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.
Double Jeopardy considers the newest data on the nature of youths' mental disorders—their relationships to delinquency, the values and limits of methods to treat them, and the common patterns of adolescent offending. That information is used to chart a rational course for fulfilling the juvenile justice system's duty—as a custodian of children in need of health care, as a legal system promoting fairness in youth adjudication, and as a protector of public safety—to respond to delinquent youths' mental disorders. Moreover, Double Jeopardy provides a scientific yet practical foundation for lawmakers, judges, attorneys, and mental health care professionals, as well as researchers who must fill the knowledge gaps that limit the juvenile justice system's abilities to meet youths' mental health needs.
In 1990, a suburban Chicago race for the Republican Party nomination for state representative unexpectedly became a national proxy battle over abortion in the United States. But the hard-fought primary also illustrated the overlooked importance of down-ballot contests in America’s culture wars. Patrick Wohl offers the dramatic account of a rollercoaster campaign that, after attracting political celebrities and a media circus, came down to thirty-one votes, a coin toss to determine the winner, and a recount fight that set a precedent for how to count dimpled chads. As the story unfolds, Wohl provides a rare nuts-and-bolts look at an election for state office from its first days through the Illinois Supreme Court decision that decided the winner--and set the stage for a decisive 1992 rematch.
A compelling political page-turner, Down Ballot takes readers behind the scenes of a legendary Illinois election.
During the 2016 presidential campaign millions of voters, concerned about the economic impact of illegal immigration, rallied behind the notion of a border wall between the United States and Mexico. Well into the Trump presidency, immigration endures as a hotly contested issue in United States politics.
In Dreams Derailed sociologist William A. Schwab shares the stories of immigration reform advocates and follows up on stories told in his 2013 book Right to DREAM, which argued in favor of the DREAM Act that would have provided conditional residency for undocumented youth brought to the United States as children, a version of which was later enacted by executive order and referred to as DACA (Deferred Action for Childhood Arrivals).
Taking as its focal point the Trump administration’s decision to rescind Obama-era DACA protection, Dreams Derailed delves into the economic, political, and social factors that inform the public conversation about immigration, making a clear case for the many benefits of inclusive policies and the protection of undocumented youths. Schwab also takes a close look at the factors that carried Donald Trump to the White House, demonstrates how economic upheaval and the issue of immigration influenced the 2016 presidential election, analyzes current immigration laws, and suggests next steps for reform.
In 1846 two slaves, Dred and Harriet Scott, filed petitions for their freedom in the Old Courthouse in St. Louis, Missouri. As the first true civil rights case decided by the U.S. Supreme Court, Dred Scott v. Sandford raised issues that have not been fully resolved despite three amendments to the Constitution and more than a century and a half of litigation.
The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law presents original research and the reflections of the nation’s leading scholars who gathered in St. Louis to mark the 150th anniversary of what was arguably the most infamous decision of the U.S. Supreme Court. The decision, which held that African Americans “had no rights” under the Constitution and that Congress had no authority to alter that, galvanized Americans and thrust the issue of race and law to the center of American politics. This collection of essays revisits the history of the case and its aftermath in American life and law. In a final section, the present-day justices of the Missouri Supreme Court offer their reflections on the process of judging and provide perspective on the misdeeds of their nineteenth-century predecessors who denied the Scotts their freedom.
Contributors: Austin Allen, Adam Arenson, John Baugh, Hon. Duane Benton, Christopher Alan Bracey, Alfred L. Brophy, Paul Finkelman, Louis Gerteis, Mark Graber, Daniel W. Hamilton, Cecil J. Hunt II, David Thomas Konig, Leland Ware, Hon. Michael A. Wolff
Extraordinary in scope and exacting in detail, Drinkers, Drivers, and Bartenders: Balancing Private Choices and Public Accountability links alcohol problems, deterrence, and serving practices in a way no other work has been able to do and is certain to become a crucial reference point for researchers and policymakers alike.
Drones and Support for the Use of Force uses experimental research to analyze the effects of combat drones on Americans’ support for the use of force. The authors’ findings—that drones have had important but nuanced effects on support for the use of force—have implications for democratic control of military action and civil-military relations and provide insight into how the proliferation of military technologies influences foreign policy.
Presenting a robust conversation among leading scholars in the areas of international legal standards, counterterrorism strategy, humanitarian law, and the ethics of force, Drones and the Future of Armed Conflict takes account of current American drone campaigns and the developing legal, ethical, and strategic implications of this new way of warfare. Among the contributions to this volume are a thorough examination of the American government’s legal justifications for the targeting of enemies using drones, an analysis of American drone campaigns’ notable successes and failures, and a discussion of the linked issues of human rights, freedom of information, and government accountability.
In A Drunkard's Defense, Michele Rotunda examines a variety of court cases to explore the attitudes of nineteenth-century physicians, legal professionals, temperance advocates, and ordinary Americans toward the relationship between drunkenness, violence, and responsibility, providing broader insights into the country's complicated relationship with alcohol.
A far-reaching examination of how America came to treat street and corporate crime so differently.
While America incarcerates its most marginalized citizens at an unparalleled rate, the nation has never developed the capacity to consistently prosecute corporate wrongdoing. Dual Justice unearths the intertwined histories of these two phenomena and reveals that they constitute more than just modern hypocrisy.
By examining the carceral and regulatory states’ evolutions from 1870 through today, Anthony Grasso shows that America’s divergent approaches to street and corporate crime share common, self-reinforcing origins. During the Progressive Era, scholars and lawmakers championed naturalized theories of human difference to justify instituting punitive measures for poor offenders and regulatory controls for corporate lawbreakers. These ideas laid the foundation for dual justice systems: criminal justice institutions harshly governing street crime and regulatory institutions governing corporate misconduct.
Since then, criminal justice and regulatory institutions have developed in tandem to reinforce politically constructed understandings about who counts as a criminal. Grasso analyzes the intellectual history, policy debates, and state and federal institutional reforms that consolidated these ideas, along with their racial and class biases, into America’s legal system.
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