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Kafka's Law
"The Trial" and American Criminal Justice
Robert P. Burns
University of Chicago Press, 2014
The Trial is actually closer to reality than fantasy as far as the client’s perception of the system. It’s supposed to be a fantastic allegory, but it’s reality. It’s very important that lawyers read it and understand this.” Justice Anthony Kennedy famously offered this assessment of the Kafkaesque character of the American criminal justice system in 1993. While Kafka’s vision of the “Law” in The Trial appears at first glance to be the antithesis of modern American legal practice, might the characteristics of this strange and arbitrary system allow us to identify features of our own system that show signs of becoming similarly nightmarish?
           
With Kafka’s Law, Robert P. Burns shows how The Trial provides an uncanny lens through which to consider flaws in the American criminal justice system today. Burns begins with the story, at once funny and grim, of Josef K., caught in the Law’s grip and then crushed by it. Laying out the features of the Law that eventually destroy K., Burns argues that the American criminal justice system has taken on many of these same features. In the overwhelming majority of contemporary cases, police interrogation is followed by a plea bargain, in which the court’s only function is to set a largely predetermined sentence for an individual already presumed guilty. Like Kafka’s nightmarish vision, much of American criminal law and procedure has become unknowable, ubiquitous, and bureaucratic. It, too, has come to rely on deception in dealing with suspects and jurors, to limit the role of defense, and to increasingly dispense justice without the protection of formal procedures. But, while Kennedy may be correct in his grim assessment, a remedy is available in the tradition of trial by jury, and Burns concludes by convincingly arguing for its return to a more central place in American criminal justice.
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Keep the Wretches in Order
America's Biggest Mass Trial, the Rise of the Justice Department, and the Fall of the IWW
Dean A. Strang
University of Wisconsin Press, 2020
Before World War I, the government reaction to labor dissent had been local, ad hoc, and quasi-military. Sheriffs, mayors, or governors would deputize strikebreakers or call out the state militia, usually at the bidding of employers. When the United States entered the conflict in 1917, government and industry feared that strikes would endanger war production; a more coordinated, national strategy would be necessary. To prevent stoppages, the Department of Justice embarked on a sweeping new effort—replacing gunmen with lawyers. The department systematically targeted the nation’s most radical and innovative union, the Industrial Workers of the World, also known as the Wobblies, resulting in the largest mass trial in U.S. history.
In the first legal history of this federal trial, Dean Strang shows how the case laid the groundwork for a fundamentally different strategy to stifle radical threats, and had a major role in shaping the modern Justice Department. As the trial unfolded, it became an exercise of raw force, raising serious questions about its legitimacy and revealing the fragility of a criminal justice system under great external pressure.
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Keeping Faith with Human Rights
Linda Hogan
Georgetown University Press, 2015

The human rights regime is one of modernity's great civilizing triumphs. From the formal promulgation of the Universal Declaration of Human Rights in 1948 to the subsequent embrace of this declaration by the newly independent states of Africa, human rights have emerged as the primary discourse of global politics and as an increasingly prominent category in the international and domestic legal system. But throughout their history, human rights have endured sustained attempts at disenfranchisement.

In this provocative study, Linda Hogan defends human rights language while simultaneously reenvisioning its future. Avoiding problematic claims about shared universal values, Hogan draws on the constructivist strand of political philosophy to argue for a three-pronged conception of human rights: as requirements for human flourishing, as necessary standards of human community, and as the basis for emancipatory politics. In the process, she shows that it is theoretically possible and politically necessary for theologians to keep faith with human rights. Indeed, the Christian tradition—the wellspring of many of the ethical commitments considered central to human rights—must embrace its vital role in the project.

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Kindly Inquisitors
The New Attacks on Free Thought, Expanded Edition
Jonathan Rauch
University of Chicago Press, 2014
“A liberal society stands on the proposition that we should all take seriously the idea that we might be wrong. This means we must place no one, including ourselves, beyond the reach of criticism; it means that we must allow people to err, even where the error offends and upsets, as it often will.” So writes Jonathan Rauch in Kindly Inquisitors, which has challenged readers for more than twenty years with its bracing and provocative exploration of the issues surrounding attempts to limit free speech. In it, Rauch makes a persuasive argument for the value of “liberal science” and the idea that conflicting views produce knowledge within society.

In this expanded edition of Kindly Inquisitors, a new foreword by George F. Will strikingly shows the book’s continued relevance, while a substantial new afterword by Rauch elaborates upon his original argument and brings it fully up to date. Two decades after the book’s initial publication, while some progress has been made, the regulation of hate speech has grown domestically—especially in American universities—and has spread even more internationally, where there is no First Amendment to serve as a meaningful check. But the answer to bias and prejudice, Rauch argues, is pluralism—not purism. Rather than attempting to legislate bias and prejudice out of existence or to drive them underground, we must pit them against one another to foster a more vigorous and fruitful discussion. It is this process that has been responsible for the growing acceptance of the moral acceptability of homosexuality over the last twenty years. And it is this process, Rauch argues, that will enable us as a society to replace hate with knowledge, both ethical and empirical.

“It is a melancholy fact that this elegant book, which is slender and sharp as a stiletto, is needed, now even more than two decades ago. Armed with it, readers can slice through the pernicious ideas that are producing the still-thickening thicket of rules, codes, and regulations restricting freedom of thought and expression.”—George F. Will, from the foreword
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The King’s Peace
Law and Order in the British Empire
Lisa Ford
Harvard University Press, 2021

How the imposition of Crown rule across the British Empire during the Age of Revolution corroded the rights of British subjects and laid the foundations of the modern police state.

During the eighteenth and nineteenth centuries, the British Empire responded to numerous crises in its colonies, from North America to Jamaica, Bengal to New South Wales. This was the Age of Revolution, and the Crown, through colonial governors, tested an array of coercive peacekeeping methods in a desperate effort to maintain control. In the process these leaders transformed what it meant to be a British subject.

In the decades after the American Revolution, colonial legal regimes were transformed as the king’s representatives ruled new colonies with an increasingly heavy hand. These new autocratic regimes blurred the lines between the rule of law and the rule of the sword. Safeguards of liberty and justice, developed in the wake of the Glorious Revolution, were eroded while exacting obedience and imposing order became the focus of colonial governance. In the process, many constitutional principles of empire were subordinated to a single, overarching rule: where necessary, colonial law could diverge from metropolitan law. Within decades of the American Revolution, Lisa Ford shows, the rights claimed by American rebels became unthinkable in the British Empire. Some colonial subjects fought back but, in the empire, the real winner of the American Revolution was the king.

In tracing the dramatic growth of colonial executive power and the increasing deployment of arbitrary policing and military violence to maintain order, The King’s Peace provides important lessons on the relationship between peacekeeping, sovereignty, and political subjectivity—lessons that illuminate contemporary debates over the imbalance between liberty and security.

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A Kiss from Thermopylae
Emily Dickinson and Law
James R. Guthrie
University of Massachusetts Press, 2014
Born into a family of attorneys, Dickinson absorbed law at home. She employed legal terms and concepts regularly in her writings, and her metaphors grounded in law derive much of their expressive power from a comparatively sophisticated lay knowledge of the various legal and political issues that were roiling nineteenth-century America. Dickinson displays interest in such areas as criminal law, contracts, equity, property, estate law, and bankruptcy. She also held in high regard the role of law in resolving disputes and maintaining civic order. Toward the end of her life, Dickinson cited the Spartans' defense at Thermopylae as an object lesson demonstrating why societies should uphold the rule of law.

Yet Dickinson was also capable of criticizing, even satirizing, law and lawyers. Her poetic personae inhabit various legal roles including those of jurymen, judges, and attorneys, and some poems simulate courtroom contests pitting the rights of individuals against the power of the state. She was keenly interested in legal matters pertaining to women, such as breach of promise, dower, and trusts. With her tone ranging from subservient to domineering, from reverential to ridiculing, Dickinson's writings reflect an abiding concern with philosophic and political principles underpinning the law, as well as an identification with the plight of individuals who dared confront authority.

A Kiss from Thermopylae reveals a new dimension of Dickinson's writing and thinking, one indicating that she was thoroughly familiar with the legal community's idiomatic language, actively engaged with contemporary political and ethical questions, and skilled at deploying a poetic register ranging from high romanticism to low humor.
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Knowing the Suffering of Others
Legal Perspectives on Pain and Its Meanings
Austin Sarat
University of Alabama Press, 2014
In Knowing the Suffering of Others, legal scholar Austin Sarat brings together essays that address suffering as it relates to the law, highlighting the ways law imagines suffering and how pain and suffering become jurisprudential facts.

From fetal imaging to end-of-life decisions, torts to international human rights, domestic violence to torture, and the law of war to victim impact statements, the law is awash in epistemological and ethical problems associated with knowing and imagining suffering. In each of these domains we might ask: How well do legal actors perceive and understand suffering in such varied domains of legal life? What problems of representation and interpretation bedevil efforts to grasp the suffering of others? What historical, political, literary, cultural, and/or theological resources can legal actors and citizens draw on to understand the suffering of others?

In Knowing the Suffering of Others, Austin Sarat presents legal scholarship that explores these questions and puts the problem of suffering at the center of thinking about law. The contributors to this volume do not regard pain and suffering as objective facts of a universe remote from law; rather they examine how both are discursively constructed in and by law. They examine how pain and suffering help construct and give meaning to the law as we know it. The authors attend to the various ways suffering appears in law as well as the different forms of suffering that require the law’s attention.

Throughout this book law is regarded as a domain in which the meanings of pain and suffering are contested, and constituted, as well as an instrument for inflicting suffering or for providing or refusing its relief. It challenges scholars, lawyers, students, and policymakers to ask how various legal actors and audiences understand the suffering of others.

Contributors
Montré D. Carodine / Cathy Caruth / Alan L. Durham / Bryan K.Fair / Steven H. Hobbs / Gregory C. Keating
/ Linda Ross Meyer / Meredith M. Render / Jeannie Suk / John Fabian Witt
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Knowing Where It Comes From
Labeling Traditional Foods to Compete in a Global Market
Fabio Parasecoli
University of Iowa Press, 2017
Offering the first broadly comparative analysis of place-based labeling and marketing systems, Knowing Where It Comes From examines the way claims about the origins and meanings of traditional foods get made around the world, from Italy and France to Costa Rica and Thailand. It also highlights the implications of different systems for both producers and consumers.

Labeling regimes have moved beyond intellectual property to embrace community-based protections, intangible cultural heritage, cultural landscapes, and indigenous knowledge. Reflecting a rich array of juridical, regulatory, and activist perspectives, these approaches seek to level the playing field on which food producers and consumers interact. 
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The Known Citizen
A History of Privacy in Modern America
Sarah E. Igo
Harvard University Press, 2020

A Washington Post Book of the Year
Winner of the Merle Curti Award
Winner of the Jacques Barzun Prize
Winner of the Ralph Waldo Emerson Award


“A masterful study of privacy.”
—Sue Halpern, New York Review of Books

“Masterful (and timely)…[A] marathon trek from Victorian propriety to social media exhibitionism…Utterly original.”
Washington Post

Every day, we make decisions about what to share and when, how much to expose and to whom. Securing the boundary between one’s private affairs and public identity has become an urgent task of modern life. How did privacy come to loom so large in public consciousness? Sarah Igo tracks the quest for privacy from the invention of the telegraph onward, revealing enduring debates over how Americans would—and should—be known. The Known Citizen is a penetrating historical investigation with powerful lessons for our own times, when corporations, government agencies, and data miners are tracking our every move.

“A mighty effort to tell the story of modern America as a story of anxieties about privacy…Shows us that although we may feel that the threat to privacy today is unprecedented, every generation has felt that way since the introduction of the postcard.”
—Louis Menand, New Yorker

“Engaging and wide-ranging…Igo’s analysis of state surveillance from the New Deal through Watergate is remarkably thorough and insightful.”
The Nation

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Kosher
Private Regulation in the Age of Industrial Food
Timothy D. Lytton
Harvard University Press, 2013

Generating over $12 billion in annual sales, kosher food is big business. It is also an unheralded story of successful private-sector regulation in an era of growing public concern over the government’s ability to ensure food safety. Kosher uncovers how independent certification agencies rescued American kosher supervision from fraud and corruption and turned it into a model of nongovernmental administration.

Currently, a network of over three hundred private certifiers ensures the kosher status of food for over twelve million Americans, of whom only eight percent are religious Jews. But the system was not always so reliable. At the turn of the twentieth century, kosher meat production in the United States was notorious for scandals involving price-fixing, racketeering, and even murder. Reform finally came with the rise of independent kosher certification agencies which established uniform industry standards, rigorous professional training, and institutional checks and balances to prevent mistakes and misconduct.

In overcoming many of the problems of insufficient resources and weak enforcement that hamper the government, private kosher certification holds important lessons for improving food regulation, Timothy Lytton argues. He views the popularity of kosher food as a response to a more general cultural anxiety about industrialization of the food supply. Like organic and locavore enthusiasts, a growing number of consumers see in rabbinic supervision a way to personalize today’s vastly complex, globalized system of food production.

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