From the McDonald’s hot coffee case to the cattle ranchers’ beef with Oprah Winfrey, from the old English "Assize of Bread" to current nutrition labeling laws, what we eat and how we eat are shaped as much by legal regulations as by personal taste. Barry M. Levenson, the curator of the world-famous (really!) Mount Horeb Mustard Museum and a self-proclaimed "recovering lawyer," offers in Habeas Codfish an entertaining and expert overview of the frustrating, frightening, and funny intersections of food and the law.
    Discover how Mr. Peanut shaped the law of trademark infringement for the entire food industry. Consider the plight of the restaurant owner besmirched by a journalist’s negative review. Find out how traditional Jewish laws of kashrut ran afoul of the First Amendment. Prison meals, butter vs. margarine, definitions of organic food, undercover ABC reporters at the Food Lion, the Massachusetts Supreme Court case that saved fish chowder, even recipes—it’s all in here, so tuck in!

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

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

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

For centuries, the writ of habeas corpus has served as an important safeguard against miscarriages of justice, and today it remains at the center of some of the most contentious issues of our time—among them terrorism, immigration, crime, and the death penalty. Yet, in recent decades, habeas has been seriously abused. In this book, Nancy J. King and Joseph L. Hoffmann argue that habeas should be exercised with greater prudence.

Through historical, empirical, and legal analysis, as well as illustrative case studies, the authors examine the current use of the writ in the United States and offer sound reform proposals to help ensure its ongoing vitality in today’s justice system. Comprehensive and thoroughly grounded in a modern understanding of habeas corpus, this informative book will be an insightful read for legal scholars and anyone interested in the importance of habeas corpus for American government.

A double is haunting the world--the double of abstraction, the virtual reality of information, programming or poetry, math or music, curves or colorings upon which the fortunes of states and armies, companies and communities now depend. The bold aim of this book is to make manifest the origins, purpose, and interests of the emerging class responsible for making this new world--for producing the new concepts, new perceptions, and new sensations out of the stuff of raw data.

A Hacker Manifesto deftly defines the fraught territory between the ever more strident demands by drug and media companies for protection of their patents and copyrights and the pervasive popular culture of file sharing and pirating. This vexed ground, the realm of so-called "intellectual property," gives rise to a whole new kind of class conflict, one that pits the creators of information--the hacker class of researchers and authors, artists and biologists, chemists and musicians, philosophers and programmers--against a possessing class who would monopolize what the hacker produces.

Drawing in equal measure on Guy Debord and Gilles Deleuze, A Hacker Manifesto offers a systematic restatement of Marxist thought for the age of cyberspace and globalization. In the widespread revolt against commodified information, McKenzie Wark sees a utopian promise, beyond the property form, and a new progressive class, the hacker class, who voice a shared interest in a new information commons.

Every liberal democracy has laws or codes against hate speech—except the United States. For constitutionalists, regulation of hate speech violates the First Amendment and damages a free society. Against this absolutist view, Jeremy Waldron argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities.

Causing offense—by depicting a religious leader as a terrorist in a newspaper cartoon, for example—is not the same as launching a libelous attack on a group’s dignity, according to Waldron, and it lies outside the reach of law. But defamation of a minority group, through hate speech, undermines a public good that can and should be protected: the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home.

Free-speech advocates boast of despising what racists say but defending to the death their right to say it. Waldron finds this emphasis on intellectual resilience misguided and points instead to the threat hate speech poses to the lives, dignity, and reputations of minority members. Finding support for his view among philosophers of the Enlightenment, Waldron asks us to move beyond knee-jerk American exceptionalism in our debates over the serious consequences of hateful speech.

Most Internet users are familiar with trolling—aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. Less familiar but far more serious is the way some use networked technologies to target real people, subjecting them, by name and address, to vicious, often terrifying, online abuse. In an in-depth investigation of a problem that is too often trivialized by lawmakers and the media, Danielle Keats Citron exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. A refutation of those who claim that these attacks are legal, or at least impossible to stop, Hate Crimes in Cyberspace reveals the serious emotional, professional, and financial harms incurred by victims.

Persistent online attacks disproportionately target women and frequently include detailed fantasies of rape as well as reputation-ruining lies and sexually explicit photographs. And if dealing with a single attacker’s “revenge porn” were not enough, harassing posts that make their way onto social media sites often feed on one another, turning lone instigators into cyber-mobs.

Hate Crimes in Cyberspace rejects the view of the Internet as an anarchic Wild West, where those who venture online must be thick-skinned enough to endure all manner of verbal assault in the name of free speech protection, no matter how distasteful or abusive. Cyber-harassment is a matter of civil rights law, Citron contends, and legal precedents as well as social norms of decency and civility must be leveraged to stop it.

Henry Friendly is frequently grouped with Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and Learned Hand as the best American jurists of the twentieth century. In this first, comprehensive biography of Friendly, David M. Dorsen opens a unique window onto how a judge of this caliber thinks and decides cases, and how Friendly lived his life.

During his time on the Court of Appeals for the Second Circuit (1959–1986), Judge Friendly was revered as a conservative who exemplified the tradition of judicial restraint. But he demonstrated remarkable creativity in circumventing precedent and formulating new rules in multiple areas of the law. Henry Friendly, Greatest Judge of His Era describes the inner workings of Friendly’s chambers and his craftsmanship in writing opinions. His articles on habeas corpus, the Fourth Amendment, self-incrimination, and the reach of the state are still cited by the Supreme Court.

Dorsen draws on extensive research, employing private memoranda between the judges and interviews with all fifty-one of Friendly’s law clerks—a veritable Who’s Who that includes Chief Justice John R. Roberts, Jr., six other federal judges, and seventeen professors at Harvard, Yale, Stanford, and elsewhere. In his Foreword, Judge Richard Posner writes: “David Dorsen has produced the most illuminating, the most useful, judicial biography that I have ever read . . . We learn more about the American judiciary at its best than we can learn from any other . . . Some of what I’ve learned has already induced me to make certain changes in my judicial practice.”

This book is a study of the historical record of Muslim women’s property rights and equity. Based on Islamic court documents of fifteenth-century Granada—documents that show a high degree of women’s involvement—the book examines women’s legal entitlements to acquire property as well as the social and economic significance of these rights to Granada’s female population and, by extension, to women in other Islamic societies.

The microhistory of women’s property rights is placed in a comparative historical, social, and economic context and is examined using a theoretical framework that suggests how this book’s conclusions might coexist with the Islamic feminist discourse on the law as a patriarchal system, serving to highlight both the uniqueness and the limitations of the Islamic case. The specifics presented in the case studies reveal the broader structures, constructs, rules, conditions, factors, and paradigms that shaped women’s property rights under Islamic law. They show that women’s property rights were more than just part of a legal system; they were the product of a legal philosophy and a pervasive paradigm that made property ownership a normal construct of the Muslim woman’s legal persona and a norm of her existence.

Democracy—its aspirations, its dangers—is what, most fundamentally, our Constitution is about. The question, Richard Parker argues in this powerful book, is how to imagine our democracy. Provocative in style and substance, this manifesto challenges orthodoxies of constitutional legal studies, particularly the idea that constitutionalism and populist democracy stand opposed. Parker presents a populist argument. He contends that the mission of constitutional law should be to promote, not limit, the expression of ordinary political energy—thus to extend, rather than constrain, majority rule.

At the root of the matter, Parker finds a question of “sensibility”—assumptions and attitudes about the political energy of ordinary people. He approaches this sensibility in a novel way, through a work of fiction about politics, Thomas Mann’s Mario and the Magician. Offering two “takes” on the story, Parker shows how it evokes—and elucidates—our deepest, most problematic attitudes about popular political energy in our own democracy. He goes on to elaborate these attitudes within our practice of constitutional argument. This is a book about the people, and for the people, a reimagination of constitutional law’s populist potential. It will disorient—then reorient—the thinking of everyone who is concerned about democracy and the Constitution.

This bold book challenges a contemporary consensus on the titanic figure of Oliver Wendell Holmes. Holmes is the acknowledged source of twentieth-century tort law, but David Rosenberg takes sharp issue with the current portrayal of Holmes as a legal formalist in torts who opposed the notion of strict liability and dogmatically advocated a universal rule of negligence, primarily to subsidize industrial development. Marshaling the evidence found in Holmes' classic The Common Law and other writings, the author reveals that the opposite was the case, and, in the process, raises troubling questions about the present state of legal scholarship.

It was Holmes who founded the modern conception and justification of strict liability. He envisioned an expansive role for strict liability to augment the negligence rule in preventing and redressing injury from industrial activity. This recovery of Holmes' theory of torts provides new insights into the nature of the jurisprudence that launched the American legal realist movement, and also overturns standard interpretations of the history of tort law.

Rejecting the prevailing view that either strict liability or negligence reigned exclusively, Holmes and his contemporaries reconciled the existence of both rules, and advocated reforms of tort law to protect society from the unprecedented hazards of industrial life. The parallel drawn by the book between their response and ours in grappling with the novel problem of mass torts confirms Holmes' belief in the adaptive genius of the common law.

A new interpretation of the constitutional law of foreign affairs, as it has been developed throughout its history by presidents and by Congress.

In the more than 230 years since the Constitution took effect, the constitutional law governing the conduct of foreign affairs has evolved significantly. But that evolution did not come through formal amendments or Supreme Court rulings. Rather, the law has been defined by the practices of Congress and the executive branch, also known as “historical gloss.”

Curtis A. Bradley documents this process in action. He shows that expansions in presidential power over foreign affairs have often been justified by reference to historical gloss, but that Congress has not merely stepped aside. Belying conventional accounts of the “imperial presidency” in foreign affairs, Congress has also benefited from gloss, claiming powers for itself in the international arena not clearly addressed in the constitutional text and disrupting claims of exclusive presidential authority.

Historical Gloss and Foreign Affairs proposes a constitutional theory that can make sense of these legal changes. In contrast, originalist theories of constitutional interpretation often ignore influential post-Founding developments, while nonoriginalist theories tend to focus on judicial decisions rather than the actions and reasoning of Congress and the executive branch. Moreover, the constitutional theories that do focus on practice have typically emphasized changes at particular moments in time. What we see in the constitutional law of foreign affairs, however, is the long-term accumulation of nonjudicial precedents that is characteristic of historical gloss. With gloss confirmed as a prime mover in the development of foreign affairs law, we can begin to recognize its broader status as an important and longstanding form of constitutional reasoning.

The sexual abuse of children by Catholic clergy is arguably the most acute crisis Catholicism has faced since the Reformation. The prevalence of clergy sexual abuse and its shocking cover-up by church officials have obscured the largely untold story of the tort system’s remarkable success in bringing the scandal to light, focusing attention on the need for institutional reform, and spurring church leaders and public officials into action.

Stories of the tort system as an engine of social justice are rare. Holding Bishops Accountable tells one such story by revealing how pleadings, discovery documents, and depositions fueled media coverage of the scandal. Timothy Lytton shows how the litigation strategy of plaintiffs’ lawyers gave rise to a widespread belief that the real problem was not the actions of individual priests but rather the church’s massive institutional failure. The book documents how church and government policymakers responded to the problem of clergy sexual abuse only under the pressure of private lawsuits.

As Lytton deftly demonstrates, the lessons of clergy sexual abuse litigation give us reason to reconsider the case for tort reform and to look more closely at how tort litigation can enhance the performance of public and private policymaking institutions.

When he settled in Mexican Texas in 1832 and began courting Anna Raguet, Sam Houston had been separated from his Tennessee wife Eliza Allen for three years, while having already married and divorced his Cherokee wife Tiana and at least two other Indian "wives" during the interval. Houston's political enemies derided these marital irregularities, but in fact Houston's legal and extralegal marriages hardly set him apart from many other Texas men at a time when illicit and unstable unions were common in the yet-to-be-formed Lone Star State.

In this book, Mark Carroll draws on legal and social history to trace the evolution of sexual, family, and racial-caste relations in the most turbulent polity on the southern frontier during the antebellum period (1823-1860). He finds that the marriages of settlers in Texas were typically born of economic necessity and that, with few white women available, Anglo men frequently partnered with Native American, Tejano, and black women. While identifying a multicultural array of gender roles that combined with law and frontier disorder to destabilize the marriages of homesteaders, he also reveals how harsh living conditions, land policies, and property rules prompted settling spouses to cooperate for survival and mutual economic gain. Of equal importance, he reveals how evolving Texas law reinforced the substantial autonomy of Anglo women and provided them material rewards, even as it ensured that cross-racial sexual relationships and their reproductive consequences comported with slavery and a regime that dispossessed and subordinated free blacks, Native Americans, and Tejanos.

Just as investors want the companies they hold equity in to do well, homeowners have a financial interest in the success of their communities. If neighborhood schools are good, if property taxes and crime rates are low, then the value of the homeowner’s principal asset—his home—will rise. Thus, as William Fischel shows, homeowners become watchful citizens of local government, not merely to improve their quality of life, but also to counteract the risk to their largest asset, a risk that cannot be diversified. Meanwhile, their vigilance promotes a municipal governance that provides services more efficiently than do the state or national government.

Fischel has coined the portmanteau word “homevoter” to crystallize the connection between homeownership and political involvement. The link neatly explains several vexing puzzles, such as why displacement of local taxation by state funds reduces school quality and why local governments are more likely to be efficient providers of environmental amenities. The Homevoter Hypothesis thereby makes a strong case for decentralization of the fiscal and regulatory functions of government.

A bold account of property reform during the French Revolution, arguing that the lofty democratic ideals enshrined by revolutionary leaders were rarely secured in practice—with lasting consequences.

Property reform was at the heart of the French Revolution. As lawmakers proclaimed at the time, and as historians have long echoed, the Revolution created modern property rights. Under the new regime, property was redefined as an individual right to which all citizens were entitled. Yet as the state seized assets and prepared them for sale, administrators quickly found that realizing the dream of democratic property rights was far more complicated than simply rewriting laws.

H. B. Callaway sifts through records on Parisian émigrés who fled the country during the Revolution, leaving behind property that the state tried to confiscate. Immediately, officials faced difficult questions about what constituted property, how to prove ownership, and how to navigate the complexities of credit arrangements and family lineage. Mothers fought to protect the inheritances of their children, tenants angled to avoid rent payments, and creditors sought their dues. In attempting to execute policy, administrators regularly exercised their own judgment on the validity of claims. Their records reveal far more continuity between the Old Regime and revolutionary practices than the law proclaimed. Property ownership continued to depend on webs of connections beyond the citizen-state relationship, reinforced by customary law and inheritance traditions. The resulting property system was a product of contingent, on-the-ground negotiations as much as revolutionary law.

The House in the Rue Saint-Fiacre takes stock of the contradictions on which modern property rights were founded. As Callaway shows, the property confiscations of Parisian émigrés are a powerful, clarifying lens on the idea of ownership even as it exists today.

A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning.

Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. More than any other court, the Supreme Court is best understood as a political court.

Between the early seventeenth century and the early twentieth,nearly all the land in the United States was transferred from AmericanIndians to whites. This dramatic transformation has been understood in two very different ways--as a series of consensual transactions, but also as a process of violent conquest. Both views cannot be correct. How did Indians actually lose their land?

Stuart Banner provides the first comprehensive answer. He argues that neither simple coercion nor simple consent reflects the complicated legal history of land transfers. Instead, time, place, and the balance of power between Indians and settlers decided the outcome of land struggles. As whites' power grew, they were able to establish the legal institutions and the rules by which land transactions would be made and enforced.

This story of America's colonization remains a story of power, but a more complex kind of power than historians have acknowledged. It is a story in which military force was less important than the power to shape the legal framework within which land would be owned. As a result, white Americans--from eastern cities to the western frontiers--could believe they were buying land from the Indians the same way they bought land from one another. How the Indians Lost Their Land dramatically reveals how subtle changes in the law can determine the fate of a nation, and our understanding of the past.

Not since the works of Lovejoy and Burt has a scholar attempted such a grand-scale inquiry into the idea of law as the vehicle of culture and social and moral thought. Donald Kelley's major premise is that law and the theory and practice of jurisprudence—civil science—represent the most concrete efforts to find a human measure, a systematic practical philosophy broader than political theory, that will allow us to understand, and perhaps control, the human social condition.

This masterful inquiry into the Western legal tradition, its formation, reformation, and transformation over two thousand years, traces the social and cultural thought of jurists and legal philosophers from Greek roots and Roman foundations to the nineteenth and twentieth centuries. Kelley examines the revival of civil science in the Middle Ages, its extension in terms of the natural cultures of modern Europe, its conflicts with European customs, and its philosophical reformulation as modern natural law. He illuminates the role of civil science in the debates over legal codes, its investigation and rehabilitation by the nineteenth-century historical school, and finally its rivalry with and relationship to the modern sciences of society and culture.

Kelley successfully broadens the perspective of political theory to encompass social and cultural dimensions and, in doing so, opens up a new intellectual continent for scholars and students of history, philosophy, and law. This is a work of unparalleled scholarship by one of the most original historians writing today.

Human Rights after Hitler reveals thousands of forgotten US and Allied war crimes prosecutions against Hitler and other Axis war criminals based on a popular movement for justice that stretched from Poland to the Pacific. These cases provide a great foundation for twenty-first-century human rights and accompany the achievements of the Nuremberg trials and postwar conventions. They include indictments of perpetrators of the Holocaust made while the death camps were still operating, which confounds the conventional wisdom that there was no official Allied response to the Holocaust at the time. This history also brings long overdue credit to the United Nations War Crimes Commission (UNWCC), which operated during and after World War II.

From the 1940s until a recent lobbying effort by Plesch and colleagues, the UNWCC’s files were kept out of public view in the UN archives under pressure from the US government. The book answers why the commission and its files were closed and reveals that the lost precedents set by these cases have enormous practical utility for prosecuting war crimes today. They cover US and Allied prosecutions of torture, including “water treatment,” wartime sexual assault, and crimes by foot soldiers who were “just following orders.” Plesch’s book will fascinate anyone with an interest in the history of the Second World War as well as provide ground-breaking revelations for historians and human rights practitioners alike.