Nineteenth-century California was a society in turmoil, with a rapidly growing population, booming mining camps, insufficient or nonexistent law-enforcement personnel, and a large number of ethnic groups with differing attitudes toward law and personal honor. Violence, including murder, was common, and legal responses varied broadly. Available now for the first time in paperback, Race and Homicide in Nineteenth-Century California examines coroners’ inquest reports, court case files, prison registers, and other primary and printed sources to analyze patterns of homicide and the state’s embryonic justice system. Author Clare V. McKanna discovers that the nature of crimes varied with the ethnicity of perpetrators and victims, as did the conduct and results of trials and sentencing patterns. He presents specific case studies and a vivid portrait of an unruly society in flux. Enhanced with testimony from contemporary sources and illustrated with period photographs, this study richly portrays a frontier society where the law was neither omnipotent nor impartial.
Few whites who violently resisted the civil rights struggle were charged with crimes in the 1950s and 1960s. But the tide of a long-deferred justice began to change in 1994, when a Mississippi jury convicted Byron De La Beckwith for the 1963 murder of Medgar Evers. Since then, more than one hundred murder cases have been reopened, resulting in more than a dozen trials. But how much did these public trials contribute to a public reckoning with America’s racist past? Racial Reckoning investigates that question, along with the political pressures and cultural forces that compelled the legal system to revisit these decades-old crimes.
“[A] timely and significant work…Romano brilliantly demystifies the false binary of villainous white men like Beckwith or Edgar Ray Killen who represent vestiges of a violent racial past with a more enlightened color-blind society…Considering the current partisan and racial divide over the prosecution of police shootings of unarmed black men, this book is a must-read for historians, legal analysts, and journalists interested in understanding the larger meanings of civil rights or racially explosive trials in America.”
—Chanelle Rose, American Historical Review
In November 2001, the state of Alabama opened a referendum on its long-standing constitutional prohibition against interracial marriage. A bill on the state ballot offered the opportunity to relegate the state's antimiscegenation law to the dustbin of history. The measure passed, but the margin was alarmingly slim: more than half a million voters, 40 percent of those who went to the polls, voted to retain a racist and constitutionally untenable law.
Julie Novkov's Racial Union explains how and why, nearly forty years after the height of the civil rights movement, Alabama struggled to repeal its prohibition against interracial marriage---the last state in the Union to do so. Novkov's compelling history of Alabama's battle over miscegenation shows how the fight shaped the meanings of race and state over ninety years. Novkov's work tells us much about the sometimes parallel, sometimes convergent evolution of our concepts of race and state in the nation as a whole.
"A remarkably nuanced account of interlocked struggles over race, gender, class and state power. Novkov's site is Alabama, but her insights are for all America."
---Rogers M. Smith, Christopher H. Browne Distinguished Professor of Political Science, University of Pennsylvania
"Hannah Arendt shocked Americans in the 1950s by suggesting that interracial intimacy was the true measure of a society's racial order. Julie Novkov's careful, illuminating, powerful book confirms Arendt's judgment. By ruling on who may be sexually linked with whom, Alabama's courts and legislators created a racial order and even a broad political order; Novkov shows us just how it worked in all of its painful, humiliating power."
---Jennifer L. Hochschild, Henry LaBarre Jayne Professor of Government, Professor of African and African American Studies, and Harvard College Professor
In 1968, ten thousand students marched in protest over the terrible conditions prevalent in the high schools of East Los Angeles, the largest Mexican community in the United States. Chanting "Chicano Power," the young insurgents not only demanded change but heralded a new racial politics. Frustrated with the previous generation's efforts to win equal treatment by portraying themselves as racially white, the Chicano protesters demanded justice as proud members of a brown race. The legacy of this fundamental shift continues to this day.
Ian Haney López tells the compelling story of the Chicano movement in Los Angeles by following two criminal trials, including one arising from the student walkouts. He demonstrates how racial prejudice led to police brutality and judicial discrimination that in turn spurred Chicano militancy. He also shows that legal violence helped to convince Chicano activists that they were nonwhite, thereby encouraging their use of racial ideas to redefine their aspirations, culture, and selves. In a groundbreaking advance that further connects legal racism and racial politics, Haney López describes how race functions as "common sense," a set of ideas that we take for granted in our daily lives. This racial common sense, Haney López argues, largely explains why racism and racial affiliation persist today.
By tracing the fluid position of Mexican Americans on the divide between white and nonwhite, describing the role of legal violence in producing racial identities, and detailing the commonsense nature of race, Haney López offers a much needed, potentially liberating way to rethink race in the United States.
This is an auto-narrated audiobook edition of this book.
International law burst on the scene as a new field in the late nineteenth century. Where did it come from? Rage for Order finds the origins of international law in empires—especially in the British Empire’s sprawling efforts to refashion the imperial constitution and use it to order the world in the early part of that century.
“Rage for Order is a book of exceptional range and insight. Its successes are numerous. At a time when questions of law and legalism are attracting more and more attention from historians of 19th-century Britain and its empire, but still tend to be considered within very specific contexts, its sweep and ambition are particularly welcome…Rage for Order is a book that deserves to have major implications both for international legal history, and for the history of modern imperialism.”
—Alex Middleton, Reviews in History
“Rage for Order offers a fresh account of nineteenth-century global order that takes us beyond worn liberal and post-colonial narratives into a new and more adventurous terrain.”
—Jens Bartelson, Australian Historical Studies
In this groundbreaking analysis of Supreme Court decision-making, Andrew Coan explains how judicial caseload shapes the course of American constitutional law and the role of the Court in American society.
Compared with the vast machinery surrounding Congress and the president, the Supreme Court is a tiny institution that can resolve only a small fraction of the constitutional issues that arise in any given year. Rationing the Constitution shows that this simple yet frequently ignored fact is essential to understanding how the Supreme Court makes constitutional law.
Due to the structural organization of the judiciary and certain widely shared professional norms, the capacity of the Supreme Court to review lower-court decisions is severely limited. From this fact, Andrew Coan develops a novel and arresting theory of Supreme Court decision-making. In deciding cases, the Court must not invite more litigation than it can handle. On many of the most important constitutional questions—touching on federalism, the separation of powers, and individual rights—this constraint creates a strong pressure to adopt hard-edged categorical rules, or defer to the political process, or both.
The implications for U.S. constitutional law are profound. Lawyers, academics, and social activists pursuing social reform through the courts must consider whether their goals can be accomplished within the constraints of judicial capacity. Often the answer will be no. The limits of judicial capacity also substantially constrain the Court’s much touted—and frequently lamented—power to overrule democratic majorities. As Rationing the Constitution demonstrates, the Supreme Court is David, not Goliath.
Liberal individualism, a foundational concept of American politics, assumes an essentially homogeneous population of independent citizens. When confronted with physical disability and the contradiction of seemingly unruly bodies, however, the public searches for a story that can make sense of the difference. The narrative that ensues makes "abnormality" an important part of the dialogue about what a genuine citizen is, though its role is concealed as an exception to the rule of individuality rather than a defining difference. Reading Embodied Citizenship brings disability to the forefront, illuminating its role in constituting what counts as U.S. citizenship.
Drawing from major figures in American literature, including Mark Twain, Flannery O'Connor, Carson McCullers, and David Foster Wallace, as well as introducing texts from the emerging canon of disability studies, Emily Russell demonstrates the place of disability at the core of American ideals. The narratives prompted by the encounter between physical difference and the body politic require a new understanding of embodiment as a necessary conjunction of physical, textual, and social bodies. Russell examines literature to explore and unsettle long-held assumptions about American citizenship.
Informed in 1944 that she was “not of the sex” entitled to be admitted to Harvard Law School, African American activist Pauli Murray confronted the injustice she called “Jane Crow.” In the 1960s and 1970s, the analogies between sex and race discrimination pioneered by Murray became potent weapons in the battle for women’s rights, as feminists borrowed rhetoric and legal arguments from the civil rights movement. Serena Mayeri’s Reasoning from Race is the first book to explore the development and consequences of this key feminist strategy.
Mayeri uncovers the history of an often misunderstood connection at the heart of American antidiscrimination law. Her study details how a tumultuous political and legal climate transformed the links between race and sex equality, civil rights and feminism. Battles over employment discrimination, school segregation, reproductive freedom, affirmative action, and constitutional change reveal the promise and peril of reasoning from race—and offer a vivid picture of Pauli Murray, Ruth Bader Ginsburg, and others who defined feminists’ agenda.
Looking beneath the surface of Supreme Court opinions to the deliberations of feminist advocates, their opponents, and the legal decision makers who heard—or chose not to hear—their claims, Reasoning from Race showcases previously hidden struggles that continue to shape the scope and meaning of equality under the law.
Article 6 of the U.S. Constitution requires that every U.S. Senator and Representative, as well as all members of any state legislature, take an oath or affirmation to support the Constitution. Legislators, after all, must accept the basic principles embodied in the Constitution and Bill of Rights when interpreting questions of law. The only way to change these principles is through amendments to the Constitution. But in an increasing number of cases, contends Michael A, Bamberger, our legislators are knowingly abdicating their responsibility to uphold the Constitution. Instead of considering the constitutionality of legislation, they vote for what is politically expedient and popular, leaving it to the courts to determine the legality of their actions. Bamberger argues that legislators have a duty to consider constitutionality and not “pass the buck” to the judiciary regardless of political pressures or even well-meaning intentions to achieve desirable policy objectives.
Reckless Legislation examines legislative consideration and avoidance of issues of constitutionality through a number of examples: the regulation of the Internet by Congress and two state legislatures; the reliance by legislatures of Minneapolis, Indianapolis, and Tennessee on “experts” to justify passage of unconstitutional laws; the repeated passage of unconstitutional laws in New York and Missouri relating, respectively, to religion and abortion to wear down the courts and the opposition; and the efforts by Congress to reverse Supreme Court decisions believed by it to be incorrect or harmful.
Bamberger urges legislators to avoid the political motives that lead to “reckless legislation,” recommending that they “make full use of the full panoply of available support services . . . for a better and deeper knowledge of the issues raised.”
Go ahead and try to make a federal case of it. That may seem to be your right, but as Larry Yackle reveals in Reclaiming the Federal Courts, the guardians of that right don’t see it that way. A systematic study of the role the federal courts play in enforcing the Constitution, this powerful book shows how the current conservative Supreme Court has undermined that role by restricting citizens’ access to these courts.
Yackle focuses on judicially created doctrines that channel certain cases away from the federal courts (which tend to hold government power in check) and into state courts (which tend to allow government a relatively free hand). In doing so, he clearly shows how seemingly arcane and confusing legal technicalities actually tilt the delicate balance between government power and individual liberty in the United States. As he traces the historical underpinnings of the federal judicial system, Yackle explains how access to the federal courts in federal-question cases is intertwined with the most fundamental elements of American Jurisprudence—Legal Formalism, Legal Realism, Legal Process, and the Civil Rights Movement—as well as with the recent conservative retrenchment. He goes on to examine specific modern doctrines. Here we see how the Rehnquist Court’s restrictive rules deny citizens standing to sue in federal court, disclaim the federal courts’ jurisdiction even when standing is conceded, channel cases away from the federal courts even when they have jurisdiction, and frustrate the right to petition the federal courts for a writ of habeas corpus—perhaps the most fundamental right of any citizen.
Yackle’s straightforward style makes his description and analysis of existing law intelligible to students and others who wish to understand how the federal judicial system actually functions—or fails to function. The book concludes with concrete recommendations for congressional action to correct the subtle but significant injustice that Yackle so clearly and cogently exposes.
Two preeminent legal scholars explain what tort law is all about and why it matters, and describe their own view of tort’s philosophical basis: civil recourse theory.
Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly.
Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity.
Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.
This book publishes for the first time the complete text of Dring’s handwritten manuscript, a major primary-source document, in which he describes the horrible conditions, treatment by guards, and experiences that he and others endured during captivity. Recollections of Life on the Prison Ship Jersey is a plea not to forget but instead to remember the inhumanity of the captors and the sacrifices of the captives—a message that continues to resonate today. Editor David Swain has provided an introductory essay and extensive notes that contain background information and historical documentation to accompany and illuminate the original manuscript.
Every legal system must decide how to distinguish between agreements that are enforceable and those that are not. Formal bargains in the marketplace and casual promises in a social setting mark the two extremes, but many hard cases lie between. When gaps are left in a contract, how should courts fill them? What does it mean to say that an agreement is legally enforceable? If someone breaks a legally enforceable contract, what consequences follow?
For 150 years, legal scholars have debated whether a set of coherent principles provide answers to such basic questions. Oliver Wendell Holmes put forward the affirmative case, arguing that bargained-for consideration, expectation damages, and a handful of related ideas captured the essence of contract law. The work of the next several generations, culminating in Grant Gilmore’s The Death of Contract in 1974, took a contrary view. The coherence Holmes had tried to bring to the field was illusory. It was more sensible to see contracts as merely a species of civil obligation and resist the temptation to impose rigid and artificial rules.
In Reconstructing Contracts, Douglas Baird takes stock of the current state of contract doctrine and in the process reinvigorates the classic framework of Anglo-American contract law. He shows that Holmes’s principles are fundamentally sound. Even if they lack that talismanic quality formerly ascribed to them, properly understood they continue to provide the best guide to contracts for a new generation of students, practitioners, and judges.
Is the language of rights enough to foster real social and political change? Nivedita Menon explores the relationship between law and feminist politics by examining the contemporary Indian women's movement with comparisons to France and the United States. She argues that the intersection of feminist politics, law, and the state often paradoxically and severely distorts important ethical and emancipatory impulses of feminism.
Menon reviews historical challenges to the liberal notion of rights from Marxist, feminist, postcolonial, and critical legal scholars, and analyzes current Indian debates on topics including abortion, sexual violence, and Parliamentary quotas for women. Far from being a call to withdraw from the arena of law, Recovering Subversion instead urges feminists everywhere to recognize the limits of "rights discourse" and pleads for a politics that goes beyond its boundaries.
Rape has never had a universally accepted definition, and the uproar over "legitimate rape" during the 2012 U.S. elections confirms that it remains a word in flux. Redefining Rape tells the story of the forces that have shaped the meaning of sexual violence in the United States, through the experiences of accusers, assailants, and advocates for change. In this ambitious new history, Estelle Freedman demonstrates that our definition of rape has depended heavily on dynamics of political power and social privilege.
The long-dominant view of rape in America envisioned a brutal attack on a chaste white woman by a male stranger, usually an African American. From the early nineteenth century, advocates for women's rights and racial justice challenged this narrow definition and the sexual and political power of white men that it sustained. Between the 1870s and the 1930s, at the height of racial segregation and lynching, and amid the campaign for woman suffrage, women's rights supporters and African American activists tried to expand understandings of rape in order to gain legal protection from coercive sexual relations, assaults by white men on black women, street harassment, and the sexual abuse of children. By redefining rape, they sought to redraw the very boundaries of citizenship.
Freedman narrates the victories, defeats, and limitations of these and other reform efforts. The modern civil rights and feminist movements, she points out, continue to grapple with both the insights and the dilemmas of these first campaigns to redefine rape in American law and culture.
In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying how the judiciary has changed since his 1981 appointment, he engages the issues at stake today, suggesting how lawyers should argue cases and judges decide them, how trials can be improved, and, most urgently, how to cope with the dizzying pace of technological advance that makes litigation ever more challenging to judges and lawyers.
For Posner, legal formalism presents one of the main obstacles to tackling these problems. Formalist judges--most notably Justice Antonin Scalia--needlessly complicate the legal process by advocating "canons of constructions" (principles for interpreting statutes and the Constitution) that are confusing and self-contradictory. Posner calls instead for a renewed commitment to legal realism, whereby a good judge gathers facts, carefully considers context, and comes to a sensible conclusion that avoids inflicting collateral damage on other areas of the law. This, Posner believes, was the approach of the jurists he most admires and seeks to emulate: Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, Robert Jackson, and Henry Friendly, and it is an approach that can best resolve our twenty-first-century legal disputes.
At the time of his death in 2005, French philosopher Paul Ricoeur was regarded as one of the great thinkers of his generation. In more than half a century of writing about the essential questions of human life, Ricoeur’s thought encompassed a vast range of wisdom and experience, and he made landmark contributions that would go on to influence later scholars in such areas as phenomenology, hermeneutics, structuralism, and theology.
Toward the end of his life, Ricoeur began to focus directly on ethical questions that he feared had been overshadowed by his other work; the result was a two-volume collection of essays on justice and the law. The University of Chicago Press published the English translation of the first volume, The Just, to great acclaim in 2000. Now this translation of the second volume, Reflections on the Just, completes the set and makes available to readers the whole of Ricoeur’s meditations on the concept.
Consisting of fifteen thematically organized essays, Reflections on the Just continues and expands on the work Ricoeur began in with his “little ethics” in Oneself as Another and The Just. In the preface, he considers what revisions he would make were he to start over and how that is reflected in these essays. The opening part brings phenomenology to bear on ethics; the second group of essays comprises shorter, occasional pieces considering the concept of justice in the works of other philosophers, including Max Weber and Charles Taylor. The final part turns to the specific domains of medicine and the law, examining how concepts of right and justice operate in those realms.
Cogent, deeply considered, and fully engaged with the realities of the contemporary world, Reflections on the Just is an essential work for understanding the development of Ricoeur’s thought in his final years.
The current products liability crisis is both familiar and puzzling: million-dollar awards for apparently frivolous claims, inadequate settlements for thousands of people with severe injuries, skyrocketing insurance premiums, an overburdened judicial system. The adverse effects of this crisis on product innovation may be particularly detrimental to the extent that they deprive consumers of newer and safer goods. W. Kip Viscusi offers the first comprehensive and objective analysis of the crisis. He employs extensive, original empirical data to diagnose the causes and to assess the merits of alternative reform policies.
Drawing on both liability insurance trends and litigation patterns, Viscusi shows that the products liability crisis is not simply a phenomenon of the 1980s but has been developing for several decades. He argues that the principal causes have been the expansion of the doctrine of design defect, the emergence of mass toxic torts, and the increase in lawsuits involving hazard warnings. This explanation differs sharply from that of most other scholars, who blame the doctrine of strict liability. Viscusi reformulates the concept of design defect, grounding it in sound economic analysis. He also evaluates public policy regarding hazard warnings and proposes a new national approach.
More generally, the author sketches a comprehensive social risk policy, in which tort liability interacts with government health and safety regulation to foster a coherent set of institutional responses to health and safety risks. Reforming Products Liability will be of special interest to lawyers, judges, policymakers, economists, and all those interested in legal policy and health and safety issues.
How are refugee crises solved? This has become an urgent question as global displacement rates continue to climb, and refugee situations now persist for years if not decades. The resolution of displacement and the conflicts that force refugees from their homes is often explained as a top-down process led and controlled by governments and international organizations. This book takes a different approach. Through contributions from scholars working in politics, anthropology, law, sociology and philosophy, and a wide range of case studies, it explores the diverse ways in which refugees themselves interpret, create and pursue solutions to their plight. It investigates the empirical and normative significance of refugees’ engagement as agents in these processes, and their implications for research, policy and practice. This book speaks both to academic debates and to the broader community of peacebuilding, humanitarian and human rights scholars concerned with the nature and dynamics of agency in contentious political contexts, and identifies insights that can inform policy and practice.
This book will become the bible of regulatory reform. No broad, authoritative treatment of the subject has been available for many years except for Alfred Kahn’s Economics of Regulation (1970). And Stephen Breyer’s book is not merely a utilitarian analysis or a legal discussion of procedures; it employs the widest possible perspective to survey the full implications of government regulation—economic, legal, administrative, political—while addressing the complex problems of administering regulatory agencies.
Only a scholar with Judge Breyer’s practical experience as chief counsel to the Senate Judiciary Committee could have accomplished this task. He develops an ingenious original system for classifying regulatory activities according to the kinds of problems that have called for, or have seemed to call for, regulation; he then examines how well or poorly various regulatory regimes remedy these market defects. This enables him to organize an enormous amount of material in a coherent way, and to make significant and useful generalizations about real-world problems.
Among the regulatory areas he considers are health and safety; environmental pollution, trucking, airlines, natural gas, public utilities, and telecommunications. He further gives attention to related topics such as cost-of-service ratemaking, safety standards, antitrust, and property rights. Clearly this is a book whose time is here—a veritable how-to-do-it book for administration deregulators, legislators, and the judiciary; and because it is comprehensive and superbly organized, with a wealth of highly detailed examples, it is practical for use in law schools and in courses on economics and political science.
The subject of regulation is one of the most vital and troublesome in our system of government. In this detailed study of early and mid-twentieth-century regulation of commercial aviation Emmette S. Redford illustrates what happens when government regulates a particular industry.
He first sets forth the perspectives for a study of an area of regulation and develops an argument for eclectic perspectives in the study of selected systems, or universes, of social action, such as the performance of an economic function under government regulation.
These perspectives are illustrated in the following series of case studies on regulation of commercial aviation:
In "An Essay on Evaluation" Redford summarizes what is revealed in the case studies that is significant with respect to the system of government regulation. He searches for standards for evaluating a system of social control, or for evaluating parts of it, and relates his conclusions to issues regarding the beneficence of a system of regulated private supply of a service.
The Regulatory Process is a study of interest to the aviation industry, to students of regulation of the economy, and to those who seek an understanding of social systems.
Are rent controls and zoning regulations unconstitutional? Should the Supreme Court strike down the Endangered Species Act when its administration interferes with the use of private property? These questions are currently debated under the doctrine of regulatory takings, and William Fischel’s book offers a new perspective on the issue.
Regulatory Takings argues that the issue is not so much about the details of property law as it is about the fairness of politics. The book employs jurisprudential theories, economic analysis, historical investigation, and political science to show why local land use regulations, such as zoning and rent control, deserve a higher degree of judicial scrutiny than national regulations. Unlike other books on this topic, Regulatory Takings goes beyond case law to buttress its arguments. Its reality checks range from reviews of statistical evidence to local inquiries about famous takings cases such as Pennsylvania Coal v. Mahon and Lucas v. South Carolina Coastal Commission. The gap between legal theory and on-the-ground practice is one reason that Fischel investigates alternative means of protecting property rights.
Local governments are often deterred from unfairly regulating portable assets by their owners’ threat of “exit” from the jurisdiction. State and federal government regulations are disciplined by property-owner coalitions whose “voice” is clearly audible in the statehouses and in Congress.
Constitutional courts need to preserve their resources for use in areas in which politics is loaded against the property owner. Regulatory Takings advances an economic standard to decide when a local regulation crosses the border from legitimate police power to a taking that requires just compensation for owners who are adversely affected.
In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents.
Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.
It has been an ancient and tenacious human hope that mankind could apply to the no man's land between states the experience of domestic law in curbing violence and settling disputes. Within a society, the use of law to resolve disputes and contain violence centers in the courts and the police. Men anxious to restrain international aggression and settle international disputes peaceably have long sought to invoke international policing and adjudication under law. Twice within the past half-century, they have undertaken to build worldwide organizations to keep the peace. The United Nations system assigns a critical role to adjudication under the Charter and international law.
In this book, one of America's foremost legal scholars, who has extensive experience in foreign policy, administration, and international law, explores whether and to what extent decisions by international tribunals have been significant, or may yet be significant, for the settlement of international disputes. Mr. Katz believes that adjudication as an institution ranks among the great creative achievements of mankind, but it has its limitations--limits both in current practice and in its potential scope.
In presenting his argument; Mr. Katz concentrates upon the period since the end of World War II and deals primarily with international conflict within the experience of the United Nations and the International Court of Justice. He focuses on disputes resulting from the Cold War and on those between established industrial states and newly emerging states or peoples that have not yet attained a full measure of self-government.
In examining what happened and appraising what might have happened; Mr. Katz keeps the reader constantly aware of the many meanings of law; and of the need to sort out the different meanings in order to apply law effectively. Without an understanding of the effective reach and the limits of adjudication; he insists; we will waste opportunities for settling international controversies. We can waste opportunities by failing to use international tribunals where they can be effective; we can dissipate the precious resource of adjudication in wishful misapplications; and in misapplying adjudication; we can divert our attention from other ways and means more pertinent to the settlement of particular international disputes.
Religion has become a charged token in a politics of division. In disputes about faith-based social services, public money for religious schools, the Pledge of Allegiance, Ten Commandments monuments, the theory of evolution, and many other topics, angry contestation threatens to displace America's historic commitment to religious freedom. Part of the problem, the authors argue, is that constitutional analysis of religious freedom has been hobbled by the idea of "a wall of separation" between church and state. That metaphor has been understood to demand that religion be treated far better than other concerns in some contexts, and far worse in others. Sometimes it seems to insist on both contrary forms of treatment simultaneously. Missing has been concern for the fair and equal treatment of religion. In response, the authors offer an understanding of religious freedom called Equal Liberty.
Equal Liberty is guided by two principles. First, no one within the reach of the Constitution ought to be devalued on account of the spiritual foundation of their commitments. Second, all persons should enjoy broad rights of free speech, personal autonomy, associative freedom, and private property. Together, these principles are generous and fair to a wide range of religious beliefs and practices.
With Equal Liberty as their guide, the authors offer practical, moderate, and appealing terms for the settlement of many hot-button issues that have plunged religious freedom into controversy. Their book calls Americans back to the project of finding fair terms of cooperation for a religiously diverse people, and it offers a valuable set of tools for working toward that end.
Tensions between religious freedom and equality law are newly strained in America. As lawmakers work to protect LGBT citizens and women seeking reproductive freedom, religious traditionalists assert their right to dissent from what they see as a new liberal orthodoxy. Some religious advocates are going further and expressing skepticism that egalitarianism can be defended with reasons at all. Legal experts have not offered a satisfying response—until now.
Nelson Tebbe argues that these disputes, which are admittedly complex, nevertheless can be resolved without irrationality or arbitrariness. In Religious Freedom in an Egalitarian Age, he advances a method called social coherence, based on the way that people reason through moral problems in everyday life. Social coherence provides a way to reach justified conclusions in constitutional law, even in situations that pit multiple values against each other. Tebbe contends that reasons must play a role in the resolution of these conflicts, alongside interests and ideologies. Otherwise, the health of democratic constitutionalism could suffer.
Applying this method to a range of real-world cases, Tebbe offers a set of powerful principles for mediating between religion and equality law, and he shows how they can lead to workable solutions in areas ranging from employment discrimination and public accommodations to government officials and public funding. While social coherence does not guarantee outcomes that will please the liberal Left, it does point the way toward reasoned, nonarbitrary solutions to the current impasse.
A miscellany of satire and law.
This edition of early Latin writings is in four volumes. The first three contain the extant work of seven poets and surviving portions of the Twelve Tables of Roman law. The fourth volume contains inscriptions on various materials (including coins), all written before 79 BC.
Volume I. Q. Ennius (239–169) of Rudiae (Rugge), author of a great epic (Annales), tragedies and other plays, and satire and other works; Caecilius Statius (ca. 220–ca. 166), a Celt probably of Mediolanum (Milano) in N. Italy, author of comedies.
Volume II. L. Livius Andronicus (ca. 284–204) of Tarentum (Taranto), author of tragedies, comedies, a translation and paraphrase of Homer’s Odyssey, and hymns; Cn. Naevius (ca. 270–ca. 200), probably of Rome, author of an epic on the 1st Punic War, comedies, tragedies, and historical plays; M. Pacuvius (ca. 220–ca. 131) of Brundisium (Brindisi), a painter and later an author of tragedies, a historical play and satire; L. Accius (170–ca. 85) of Pisaurum (Pisaro), author of tragedies, historical plays, stage history and practice, and some other works; fragments of tragedies by authors unnamed.
Volume III. C. Lucilius (180?–102/1) of Suessa Aurunca (Sessa), writer of satire; The Twelve Tables of Roman law, traditionally of 451–450.
Volume IV. Archaic Inscriptions: Epitaphs, dedicatory and honorary inscriptions, inscriptions on and concerning public works, on movable articles, on coins; laws and other documents.
In Rendition to Torture, Alan W. Clarke explains how the United States adopted torture as a matter of official policy; how and why it turned to extraordinary rendition as a way to outsource more extreme, mutilating forms of torture; and outlines the steps the United States took to hide its abuses. Many adverse consequences attended American use of torture. False information gleaned from torture was used to justify the Iraq war, adding potency to the charge that the war was illegal under international law. Moreover, European nations and Canada aided, abetted, and became thoroughly enmeshed in U.S.-led torture and renditions, thereby spreading both the problem and the blame for this practice. Clarke offers an extended critique of these activities, placing them in historical and legal context as well as in transnational and comparative perspective.
Renewable Resource Policy is a comprehensive volume covering the history, laws, and important national policies that affect renewable resource management. The author traces the history of renewable natural resource policy and management in the United States, describes the major federal agencies and their functions, and examines the evolution of the primary resource policy areas.
The book provides valuable insight into the often neglected legal, administrative, and bureaucratic aspect of natural resource management. It is a definitive and essential source of information covering all facets of renewable resource policy that brings together a remarkable range of information in a coherent, integrated form.
“A wonderful excavation of the first era of civil rights lawyering.”—Randall L. Kennedy, author of The Persistence of the Color Line
“Ken Mack brings to this monumental work not only a profound understanding of law, biography, history and racial relations but also an engaging narrative style that brings each of his subjects dynamically alive.”—Doris Kearns Goodwin, author of Team of Rivals
Representing the Race tells the story of an enduring paradox of American race relations through the prism of a collective biography of African American lawyers who worked in the era of segregation. Practicing the law and seeking justice for diverse clients, they confronted a tension between their racial identity as black men and women and their professional identity as lawyers. Both blacks and whites demanded that these attorneys stand apart from their racial community as members of the legal fraternity. Yet, at the same time, they were expected to be “authentic”—that is, in sympathy with the black masses. This conundrum, as Kenneth W. Mack shows, continues to reverberate through American politics today.
Mack reorients what we thought we knew about famous figures such as Thurgood Marshall, who rose to prominence by convincing local blacks and prominent whites that he was—as nearly as possible—one of them. But he also introduces a little-known cast of characters to the American racial narrative. These include Loren Miller, the biracial Los Angeles lawyer who, after learning in college that he was black, became a Marxist critic of his fellow black attorneys and ultimately a leading civil rights advocate; and Pauli Murray, a black woman who seemed neither black nor white, neither man nor woman, who helped invent sex discrimination as a category of law. The stories of these lawyers pose the unsettling question: what, ultimately, does it mean to “represent” a minority group in the give-and-take of American law and politics?
Contributors. Kathryn Abrams, Linda Brodkey, Rita Copeland, Elizabeth Butler Cullingford, Margaret Anne Doody, Susan B. Estrich, Michelle Fine, Anne B. Goldstein, Angela P. Harris, Susan Sage Heinzelman, Christine L. Krueger, Martha Minow, Carol Sanger, Judy Scales-Trent
In this ethnographic study of the new reproductive technologies in Israel, Susan Martha Kahn explores the cultural meanings and contemporary rabbinic responses to artificial insemination, in-vitro fertilization, egg donation, and surrogacy. Kahn draws on fieldwork with unmarried Israeli women who are using state-subsidized artificial insemination to get pregnant and on participant-observation in Israeli fertility clinics. Through close readings of traditional Jewish texts and careful analysis of Israeli public discourse, she explains how the Israeli embrace of new reproductive technologies has made Jewish beliefs about kinship startlingly literal. Kahn also reveals how a wide range of contemporary Israelis are using new reproductive technologies to realize their reproductive futures, from ultraorthodox infertile married couples to secular unmarried women.
As the first scholarly account of assisted conception in Israel, this multisited ethnography will contribute to current anthropological debates on kinship studies. It will also interest those involved with Jewish studies.
In this imaginative exploration of modern legal culture, Lawrence Friedman addresses how the contemporary idea of individual rights has altered the legal systems and authority structures of Western societies. Every aspect of law, he argues--from civil rights to personal-injury litigation to divorce law--has been profoundly reshaped, reflecting the power of this concept.
The new individualism is quite different from that of the nineteenth century, which stressed self-control, discipline, and traditional group values. Modern individualism focuses on the individual as the starting and ending point of life and assumes a wide zone of choice. Choice is vital, fundamental: the right to develop oneself, to build up a life uniquely suited to oneself through free, open selection among forms, models, and lifestyles. With striking clarity and force, Friedman demonstrates how the new individualism results from changes in the technological and social framework of society. Loose, unconnected, free-floating, mobile: this is the modern individual, at least in comparison with the immediate past.
Written for the general reader as well as lawyers and legal scholars, The Republic of Choice offers keen and original observations about legal culture and the public consciousness that informs and expresses it.
Not long ago, Republicans could take pride in their party’s tradition of environmental leadership. In the late 1960s and early 1970s, the GOP helped to create the Environmental Protection Agency, extend the Clean Air Act, and protect endangered species. Today, as Republicans denounce climate change as a “hoax” and seek to dismantle the environmental regulatory state they worked to build, we are left to wonder: What happened?
In The Republican Reversal, James Morton Turner and Andrew C. Isenberg show that the party’s transformation began in the late 1970s, with the emergence of a new alliance of pro-business, libertarian, and anti-federalist voters. This coalition came about through a concerted effort by politicians and business leaders, abetted by intellectuals and policy experts, to link the commercial interests of big corporate donors with states’-rights activism and Main Street regulatory distrust. Fiscal conservatives embraced cost-benefit analysis to counter earlier models of environmental policy making, and business tycoons funded think tanks to denounce federal environmental regulation as economically harmful, constitutionally suspect, and unchristian, thereby appealing to evangelical views of man’s God-given dominion of the Earth.
As Turner and Isenberg make clear, the conservative abdication of environmental concern stands out as one of the most profound turnabouts in modern American political history, critical to our understanding of the GOP’s modern success. The Republican reversal on the environment is emblematic of an unwavering faith in the market, skepticism of scientific and technocratic elites, and belief in American exceptionalism that have become the party’s distinguishing characteristics.
On March 11, 1854, the people of Wisconsin prevented agents of the federal government from carrying away the fugitive slave, Joshua Glover. Assembling in mass outside the Milwaukee courthouse, they demanded that the federal officers respect his civil liberties as they would those of any other citizen of the state. When the officers refused, the crowd took matters into its own hands and rescued Joshua Glover. The federal government brought his rescuers to trial, but the Wisconsin Supreme Court intervened and took the bold step of ruling the Fugitive Slave Act unconstitutional.
The Rescue of Joshua Glover delves into the courtroom trials, political battles, and cultural equivocation precipitated by Joshua Glover’s brief, but enormously important, appearance in Wisconsin on the eve of the Civil War.
H. Robert Baker articulates the many ways in which this case evoked powerful emotions in antebellum America, just as the stage adaptation of Uncle Tom’s Cabin was touring the country and stirring antislavery sentiments. Terribly conflicted about race, Americans struggled mightily with a revolutionary heritage that sanctified liberty but also brooked compromise with slavery. Nevertheless, as The Rescue of Joshua Glover demonstrates, they maintained the principle that the people themselves were the last defenders of constitutional liberty, even as Glover’s rescue raised troubling questions about citizenship and the place of free blacks in America.
What should we do with teenagers who commit crimes? Are they children whose offenses are the result of immaturity and circumstances, or are they in fact criminals?
“Adult time for adult crime” has been the justice system’s mantra for the last twenty years. But locking up so many young people puts a strain on state budgets—and ironically, the evidence suggests it ultimately increases crime.
In this bold book, two leading scholars in law and adolescent development offer a comprehensive and pragmatic way forward. They argue that juvenile justice should be grounded in the best available psychological science, which shows that adolescence is a distinctive state of cognitive and emotional development. Although adolescents are not children, they are also not fully responsible adults.
Elizabeth Scott and Laurence Steinberg outline a new developmental model of juvenile justice that recognizes adolescents’ immaturity but also holds them accountable. Developmentally based laws and policies would make it possible for young people who have committed crimes to grow into responsible adults, rather than career criminals, and would lighten the present burden on the legal and prison systems. In the end, this model would better serve the interests of justice, and it would also be less wasteful of money and lives than the harsh and ineffective policies of the last generation.
Scientific and technological innovations are forcing patent law into the spotlight and revealing its many glaring inadequacies. Take, for example, the patent case that almost shut down the BlackBerry, or the growing phenomenon of patent trolling, in which patents are acquired for the sole purpose of entrapping companies whose products relate to them. And patents on genes have everyone up in arms—and our courts confused.
Robin Feldman explains why patents are causing so much trouble. The problem lies in our assumption that patents set clear boundaries for rights to an invention. In reality, they do no such thing. The very nature of inventions makes them impossible to describe unambiguously for all time. When something is so new that we do not understand yet how it works, what it is capable of doing, or how it could be applied—as is often the case in biotechnology—description is necessarily slippery.
Instead of hoping for clear boundaries, and moaning when we don’t get them, Rethinking Patent Law urges lawmakers to focus on what the law can do well: craft rules that anticipate the bargaining that will occur as rights unfold. By steering clear of laws that distort the bargaining process, lawmakers can help courts answer difficult questions, such as whether genes, software, and business methods constitute patentable subject matter, whether patents in the life sciences should control inventions that have yet to be discovered, and how to resolve the battles between pharmaceutical companies and generics.
Conventional wisdom holds that all nations must repay debt. Regardless of the legitimacy of the regime that signs the contract, a country that fails to honor its loan obligations damages its reputation, inviting still greater problems down the road. Yet difficult dilemmas arise from this assumption. Should today's South Africa be responsible for apartheid-era debt? Is it reasonable to tether postwar Iraq with Saddam Hussein's excesses?
Rethinking Sovereign Debt is a probing historical analysis of how sovereign debt continuity--the rule that nations should repay loans even after a major regime change, or expect reputational consequences--became the consensus approach. Odette Lienau contends that the practice is not essential for functioning international capital markets, and demonstrates how it relies on ideas of absolutist government that have come under fire over the last century. Challenging previous accounts, Lienau incorporates a wealth of original research to argue that Soviet Russia's repudiation of Tsarist debt and Great Britain's 1923 arbitration with Costa Rica hint at the feasibility of selective debt cancellation. She traces the notion of debt continuity from the post-World War I era to the present, emphasizing the role of government officials, the World Bank, and private-market actors in shaping our existing framework.
Lienau calls on scholars and policymakers to recognize political choice and historical precedent in sovereign debt and reputation, in order to move beyond an impasse when a government is overthrown.
In late 1930, on a secluded mountain overlooking the rural paddy fields of British Burma, a peasant leader named Saya San crowned himself King and inaugurated a series of uprisings that would later erupt into one of the largest anti-colonial rebellions in Southeast Asian history. Considered an imposter by the British, a hero by nationalists, and a prophet-king by area-studies specialists, Saya San came to embody traditional Southeast Asia’s encounter with European colonialism in his attempt to resurrect the lost throne of Burma.
The Return of the Galon King analyzes the legal origins of the Saya San story and reconsiders the facts upon which the basic narrative and interpretations of the rebellion are based. Aung-Thwin reveals how counter-insurgency law produced and criminalized Burmese culture, contributing to the way peasant resistance was recorded in the archives and understood by Southeast Asian scholars.
This interdisciplinary study reveals how colonial anthropologists, lawyers, and scholar-administrators produced interpretations of Burmese culture that influenced contemporary notions of Southeast Asian resistance and protest. It provides a fascinating case study of how history is treated by the law, how history emerges in legal decisions, and how the authority of the past is used to validate legal findings.
Reversing Field invites students, professionals, and enthusiasts of sport—whether law, management and marketing, or the game itself—to explore the legal issues and regulations surrounding collegiate and professional athletics in the United States. This theoretical and methodological interrogation of sports law openly addresses race, labor, gender, and the commercialization of sports, while offering solutions to the disruptions that threaten its very foundation during an era of increased media scrutiny and consumerism. In over thirty chapters, academics, practitioners, and critics vigorously confront and debate matters such as the Arms Race, gender bias, racism, the Rooney Rule, and steroid use, offering new thought and resolution to the vexing legal issues that confront sports in the 21st century.
Contributors. Richard Bernstein, David Bromwich, Ray Carney, Stanley Cavell, Morris Dickstein, John Patrick Diggins, Stanley Fish, Nancy Fraser, Thomas C. Grey, Giles Gunn, Hans Joas, James T. Kloppenberg, David Luban, Louis Menand, Sidney Morgenbesser, Richard Poirier, Richard A. Posner, Ross Posnock, Hilary Putnam, Ruth Anna Putnam, Richard Rorty, Michel Rosenfeld, Richard H. Weisberg, Robert B. Westbrook, Alan Wolfe
Although constitutional law is supposed to be fixed and enduring, its central narrative in the twentieth century has been one of radical reinterpretation--Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies such radical reinterpretation? How does it work doctrinally? What, if anything, structures it or limits it?
Jed Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly. He posits two different understandings of how constitutional rights would apply or not apply to particular legislation. One is that a right would be violated if certain laws were passed. The other is that a right would not be violated. He calls the former "Application Understandings" and the latter "No-Application Understandings." He finds that constitutional law has almost always adhered to all of the original Application Understandings, but where it has departed from history, as it did in the Brown decision, it has departed from No-Application Understandings. Specifically, the Fourteenth Amendment did not prohibit racial segregation, so Rubenfeld argues that the Supreme Court had no problem reinterpreting it to prohibit it. It was a No-Application Understanding.
This is a powerful argument that challenges current theories of constitutional interpretation from Bork to Dworkin. It rejects simplistic originalism, but restores historicity to constitutional theorizing.
A robust defense of democratic populism by one of America’s most renowned and controversial constitutional scholars—the award-winning author of We the People.
Populism is a threat to the democratic world, fuel for demagogues and reactionary crowds—or so its critics would have us believe. But in his award-winning trilogy We the People, Bruce Ackerman showed that Americans have repeatedly rejected this view. Now he draws on a quarter century of scholarship in this essential and surprising inquiry into the origins, successes, and threats to revolutionary constitutionalism around the world. He takes us to India, South Africa, Italy, France, Poland, Burma, Israel, and Iran and provides a blow-by-blow account of the tribulations that confronted popular movements in their insurgent campaigns for constitutional democracy. Despite their many differences, populist leaders such as Nehru, Mandela, and de Gaulle encountered similar dilemmas at critical turning points, and each managed something overlooked but essential. Rather than deploy their charismatic leadership to retain power, they instead used it to confer legitimacy to the citizens and institutions of constitutional democracy.
Ackerman returns to the United States in his last chapter to provide new insights into the Founders’ acts of constitutional statesmanship as they met very similar challenges to those confronting populist leaders today. In the age of Trump, the democratic system of checks and balances will not survive unless ordinary citizens rally to its defense. Revolutionary Constitutions shows how activists can learn from their predecessors’ successes and profit from their mistakes, and sets up Ackerman’s next volume, which will address how elites and insiders co-opt and destroy the momentum of revolutionary movements.
Who controls how one’s identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet age. Jennifer Rothman uses the right of publicity—a little-known law, often wielded by celebrities—to answer that question, not just for the famous but for everyone. In challenging the conventional story of the right of publicity’s emergence, development, and justifications, Rothman shows how it transformed people into intellectual property, leading to a bizarre world in which you can lose ownership of your own identity. This shift and the right’s subsequent expansion undermine individual liberty and privacy, restrict free speech, and suppress artistic works.
The Right of Publicity traces the right’s origins back to the emergence of the right of privacy in the late 1800s. The central impetus for the adoption of privacy laws was to protect people from “wrongful publicity.” This privacy-based protection was not limited to anonymous private citizens but applied to famous actors, athletes, and politicians. Beginning in the 1950s, the right transformed into a fully transferable intellectual property right, generating a host of legal disputes, from control of dead celebrities like Prince, to the use of student athletes’ images by the NCAA, to lawsuits by users of Facebook and victims of revenge porn.
The right of publicity has lost its way. Rothman proposes returning the right to its origins and in the process reclaiming privacy for a public world.
READERS
Browse our collection.
PUBLISHERS
See BiblioVault's publisher services.
STUDENT SERVICES
Files for college accessibility offices.
UChicago Accessibility Resources
home | accessibility | search | about | contact us
BiblioVault ® 2001 - 2024
The University of Chicago Press