What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? Must everyone always obey the law? If not, when is a citizen morally free to disobey?

A renowned philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the “ruling” theory in Anglo-American law—legal positivism and economic utilitarianism—and asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the state that are prior to the welfare of the majority.

Mr. Dworkin criticizes in detail the legal positivists’ theory of legal rights, particularly H. L. A. Hart’s well-known version of it. He then develops a new theory of adjudication, and applies it to the central and politically important issue of cases in which the Supreme Court interprets and applies the Constitution. Through an analysis of John Rawls’s theory of justice, he argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance with the law designed not simply to answer theoretical questions about civil disobedience, but to function as a guide for citizens and officials. Finally, Professor Dworkin considers the right to liberty, often thought to rival and even preempt the fundamental right to equality. He argues that distinct individual liberties do exist, but that they derive, not from some abstract right to liberty as such, but from the right to equal concern and respect itself. He thus denies that liberty and equality are conflicting ideals.

Ronald Dworkin’s theory of law and the moral conception of individual rights that underlies it have already made him one of the most influential philosophers working in this area. This is the first publication of these ideas in book form.

If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance.

Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind?

Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.

In the early decades of the twentieth century, business leaders condemned civil liberties as masks for subversive activity, while labor sympathizers denounced the courts as shills for industrial interests. But by the Second World War, prominent figures in both camps celebrated the judiciary for protecting freedom of speech. In this strikingly original history, Laura Weinrib illustrates how a surprising coalition of lawyers and activists made judicial enforcement of the Bill of Rights a defining feature of American democracy.

The Taming of Free Speech traces our understanding of civil liberties to conflict between 1910 and 1940 over workers’ right to strike. As self-proclaimed partisans in the class war, the founders of the American Civil Liberties Union promoted a bold vision of free speech that encompassed unrestricted picketing and boycotts. Over time, however, they subdued their rhetoric to attract adherents and prevail in court. At the height of the New Deal, many liberals opposed the ACLU’s litigation strategy, fearing it would legitimize a judiciary they deemed too friendly to corporations and too hostile to the administrative state. Conversely, conservatives eager to insulate industry from government regulation pivoted to embrace civil liberties, despite their radical roots. The resulting transformation in constitutional jurisprudence—often understood as a triumph for the Left—was in fact a calculated bargain.

America’s civil liberties compromise saved the courts from New Deal attack and secured free speech for labor radicals and businesses alike. Ever since, competing groups have clashed in the arena of ideas, shielded by the First Amendment.

When Daniel Webster commented that the two certainties were death and taxes, he could not have imagined all the ingenious ways governments could tax and spend, though leaving this earth has changed not at all.

The tax expenditure concept is one of the newer methods of tax policy analysis that has been reshaping fiscal and monetary plans of governments. A tax expenditure is a financial benefit provided through the tax system. Whether for obsolete machinery in a factory, payment of real estate taxes, or childcare for a working mother, a special tax break is a tax expenditure. The tax expenditure concept was introduced to the Treasury Department in 1968 under the direction of Stanley Surrey and was described in his landmark book Pathways to Tax Reform. In this new book, the authors analyze the development of the concept since 1973, during which time applications of tax expenditures have expanded rapidly and new dimensions have emerged for even wider usage.

The United States prepared special analyses of tax expenditures in 1975 and Congress made the tax expenditure budget a part of the Tax Reform Act of 1981. Other countries now use the tool for analysis and budgeting, and a tax expenditure budget seems to be a permanent fixture in government planning. Recent U.S. tax expenditure budgets have increased by as much as 179 percent, while taxes collected through direct legislation have risen only 14 percent. Surrey and McDaniel focus on the impact of the tax expenditure notion on budget policy and tax policy and administration, and on how governments can decide between tax expenditures or direct spending to implement programs.

“Few people realize that in the area of law, Texas began its American journey far ahead of most of the rest of the country, far more enlightened on such subjects as women’s rights and the protection of debtors.” Thus James Haley begins this highly readable account of the Texas Supreme Court. The first book-length history of the Court published since 1917, it tells the story of the Texas Supreme Court from its origins in the Republic of Texas to the political and philosophical upheavals of the mid-1980s.

Using a lively narrative style rather than a legalistic approach, Haley describes the twists and turns of an evolving judiciary both empowered and constrained by its dual ties to Spanish civil law and English common law. He focuses on the personalities and judicial philosophies of those who served on the Supreme Court, as well as on the interplay between the Court’s rulings and the state’s unique history in such areas as slavery, women’s rights, land and water rights, the rise of the railroad and oil and gas industries, Prohibition, civil rights, and consumer protection. The book is illustrated with more than fifty historical photos, many from the nineteenth and early twentieth centuries. It concludes with a detailed chronology of milestones in the Supreme Court’s history and a list, with appointment and election dates, of the more than 150 justices who have served on the Court since 1836.

Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law examines the main characteristics of the legal thought of Imam Jaʿfar al-Ṣādiq, a preeminent religious scholar jurist of Medina in the first half of the second century of the Muslim calendar (mid-eighth century CE). Numerous works in different languages have appeared over the past half century to introduce this school of Islamic law and its history, legal theory, and substance in contexts of Shīʿī law.

While previous literature has focused on the current status of the school in its developed and expanded form, this book presents an intellectual history of how the school began. The Jaʿfarī school emerged within the general legal discourse of late-Umayyad and early- Abbasid periods, but was known to differ in certain approaches from the other main legal schools of this time. Namely, the Jaʿfarī school expanded the tools for legal interpretation generally and contracts specifically, to a degree unmatched by any of its counterparts in the Muslim legal tradition. In addition to sketching the origins of the school, the book examines Jaʿfar al-Ṣādiq’s interpretive approach through detailing his position on a number of specific questions, as well as the legal canons, presumptions, and other interpretive tools he adopted.

Equally at home in economic theory and political philosophy, John Roemer has written a unique book that critiques economists’ conceptions of justice from a philosophical perspective and philosophical theories of distributive justice from an economic one. He unites the economist’s skill in constructing precise, axiomatic models with the philosopher’s in exploring the assumptions of those models. His synthesis will enable philosophers and economists to engage each other’s ideas more fruitfully.

Roemer first shows how economists’ understanding of the fairness of various resource allocation mechanisms can be enriched. He extends the economic theory of social choice to show how individual preferences can be aggregated into social preferences over various alternatives. He critiques the standard applications of axiomatic bargaining theory to distributive justice, showing that they ignore information on available resources and preference orderings. He puts these variables in the models, which enable him to generate resource allocation mechanisms that are more consonant with our intuitions about distributive justice. He then critiques economists’ theories of utilitarianism and examines the question of the optimal population size in a world of finite resources.

Roemer explores the major new philosophical concepts of the theory of distributive justice—primary goods, functionings and capability, responsibility in its various forms, procedural versus outcome justice, midfare—and shows how they can be sharpened and clarified with the aid of economic analysis. He critiques and extends the ideas of major contemporary theories of distributive justice, including those of Rawls, Sen, Nozick, and Dworkin. Beginning from the recent theories of Arneson and G. A. Cohen, he constructs a theory of equality of opportunity. Theories of Distributive Justice contains important and original results, and it can also be used as a graduate-level text in economics and philosophy.

Karl N. Llewellyn was one of the founders and major figures of legal realism, and his many keen insights have a central place in American law and legal understanding. Key to Llewellyn’s thinking was his conception of rules, put forward in his numerous writings and most famously in his often mischaracterized declaration that they are “pretty playthings.” Previously unpublished, The Theory of Rules is the most cogent presentation of his profound and insightful thinking about the life of rules.

This book frames the development of Llewellyn’s thinking and describes the difference between what rules literally prescribe and what is actually done, with the gap explained by a complex array of practices, conventions, professional skills, and idiosyncrasies, most of which are devoted to achieving a law’s larger purpose rather than merely following the letter of a particular rule. Edited, annotated, and with an extensive analytic introduction by leading contemporary legal scholar Frederick Schauer, this rediscovered work contains material not found elsewhere in Llewellyn’s writings and will prove a valuable contribution to the existing literature on legal realism.

This primer on legal reasoning is aimed at law students and upper-level undergraduates. But it is also an original exposition of basic legal concepts that scholars and lawyers will find stimulating. It covers such topics as rules, precedent, authority, analogical reasoning, the common law, statutory interpretation, legal realism, judicial opinions, legal facts, and burden of proof.

In addressing the question whether legal reasoning is distinctive, Frederick Schauer emphasizes the formality and rule-dependence of law. When taking the words of a statute seriously, when following a rule even when it does not produce the best result, when treating the fact of a past decision as a reason for making the same decision again, or when relying on authoritative sources, the law embodies values other than simply that of making the best decision for the particular occasion or dispute. In thus pursuing goals of stability, predictability, and constraint on the idiosyncrasies of individual decision-makers, the law employs forms of reasoning that may not be unique to it but are far more dominant in legal decision-making than elsewhere.

Schauer’s analysis of what makes legal reasoning special will be a valuable guide for students while also presenting a challenge to a wide range of current academic theories.

Theft claims more victims and causes greater economic injury than any other criminal offense. Yet theft law is enigmatic, and fundamental questions about what should count as stealing remain unresolved—especially misappropriations of intellectual property, information, ideas, identities, and virtual property.

In Thirteen Ways to Steal a Bicycle, Stuart Green assesses our current legal framework at a time when our economy increasingly commodifies intangibles and when the means of committing theft and fraud grow ever more sophisticated. Was it theft for the editor of a technology blog to buy a prototype iPhone he allegedly knew had been lost by an Apple engineer in a Silicon Valley bar? Was it theft for doctors to use a patient’s tissue without permission in order to harvest a valuable cell line? For an Internet activist to publish tens of thousands of State Department documents on his Web site?

In this full-scale critique, Green reveals that the last major reforms in Anglophone theft law, which took place almost fifty years ago, flattened moral distinctions, so that the same punishments are now assigned to vastly different offenses. Unreflective of community attitudes toward theft, which favor gradations in blameworthiness according to what is stolen and under what circumstances, and uninfluenced by advancements in criminal law theory, theft law cries out for another reformation—and soon.

An essential study of the rule of law by one of the world’s leading liberal political and legal philosophers.

The meaning and value of the rule of law have been debated since antiquity. For many, the rule of law has become the essence of good government. But Jeremy Waldron takes a different view, arguing that it is but one star in a constellation of ideals that define our political morality, ranking alongside democracy, human rights, economic freedom, and social justice.

This timely essay collection, from one of the most respected political philosophers of his generation, is a brief on behalf of thoughtfulness: the intervention of human intelligence in the application of law. Waldron defends thoughtfulness against the claim that it threatens to replace the rule of law with the arbitrary rule of people. To the contrary, he argues, the rule of law requires thoughtfulness: it is impossible to apply a standard such as “reasonableness” on the basis of rules alone, and common legal activities like arguing in court and reasoning from precedents are poorly served by algorithmic logics. This rich compilation also addresses the place of law in protecting human dignity, the relation between rule of law and legislation, and whether vagueness in the law is at odds with law’s role in guiding action.

Thoughtfulness and the Rule of Law emphasizes the value of procedures rather than the substance or outcome of legal decisions. Challenging the view that predictability and clarity are cardinal virtues, Waldron shows that real-world controversies often are best approached using a relatively thin concept of the rule of law, together with the thoughtfulness that a legal system frames and enables.

In this first comprehensive overview of the intersection of immigration law and the First Amendment, a lawyer and historian traces ideological exclusion and deportation in the United States from the Alien Friends Act of 1798 to the evolving policies of the Trump administration.

Beginning with the Alien Friends Act of 1798, the United States passed laws in the name of national security to bar or expel foreigners based on their beliefs and associations—although these laws sometimes conflict with First Amendment protections of freedom of speech and association or contradict America’s self-image as a nation of immigrants. The government has continually used ideological exclusions and deportations of noncitizens to suppress dissent and radicalism throughout the twentieth and twenty-first centuries, from the War on Anarchy to the Cold War to the War on Terror.

In Threat of Dissent—the first social, political, and legal history of ideological exclusion and deportation in the United States—Julia Rose Kraut delves into the intricacies of major court decisions and legislation without losing sight of the people involved. We follow the cases of immigrants and foreign-born visitors, including activists, scholars, and artists such as Emma Goldman, Ernest Mandel, Carlos Fuentes, Charlie Chaplin, and John Lennon. Kraut also highlights lawyers, including Clarence Darrow and Carol Weiss King, as well as organizations, like the ACLU and PEN America, who challenged the constitutionality of ideological exclusions and deportations under the First Amendment. The Supreme Court, however, frequently interpreted restrictions under immigration law and upheld the government’s authority.

By reminding us of the legal vulnerability foreigners face on the basis of their beliefs, expressions, and associations, Kraut calls our attention to the ways that ideological exclusion and deportation reflect fears of subversion and serve as tools of political repression in the United States.

“Suspicion of foreigners goes back to the earliest days of the republic…Kraut traces how different ideologies would be considered intolerably dangerous according to the dominant fears of a given era. Anarchism gave way to communism; communism gave way to Islamic radicalism.”
—Jennifer Szalai, New York Times

“Magisterial and well written…A gripping, expansive story that traces the consequences of suspicions of ‘un-American’ ideologies and loyalties in federal jurisprudence from the War of 1812 through the still-raging War on Terror.”
—Rachel Ida Buff, Journal of Interdisciplinary History

“An original, comprehensive history of one of the most pervasive and insidious forms of political repression in the United States—one few Americans know anything about.”
—Michael Kazin, author of War Against War

Beginning with the Alien Friends Act of 1798, the United States has passed laws in the name of national security to bar or expel foreigners based on their beliefs and associations. From the War on Anarchy to the War on Terror, the government repeatedly turns to ideological exclusions and deportations to suppress radicalism and dissent.

Threat of Dissent delves into major legislation and court decisions at the intersection of immigration and the First Amendment without losing sight of the people involved. We follow the cases of foreign-born activists and artists such as Emma Goldman and Carlos Fuentes, meet determined civil rights lawyers like Carol Weiss King, and discover how the ACLU and PEN challenged the constitutionality of exclusions and deportations. While sensitively capturing the particular legal vulnerability of foreigners, Julia Rose Kraut reminds us that deportations are not just a tool of political repression but a deliberate instrument of demagogic grandstanding.

Boilerplate language in contracts tends to stick around long after its origins and purpose have been forgotten. Usually there are no serious repercussions, but sometimes it can cause unexpected problems. Such was the case with the obscure pari passu clause in cross-border sovereign debt contracts, until a novel judicial interpretation rattled international finance by forcing a defaulting sovereign—for one of the first times in the market’s centuries-long history—to repay its foreign creditors. Though neither party wanted this outcome, the vast majority of contracts subsequently issued demonstrate virtually no attempt to clarify the imprecise language of the clause.

This study is not written from the narrow perspective of “Who gets the oil?” It is a thoughtful probing of an issue—the ownership and control of the submerged soils of the marginal sea—the outcome of which may go far to determine the division of powers between states and nation under the American federal system.

American constitutional law, international law, theory of federalism, American politics, the machinations of pressure groups, use of propaganda techniques, and issues of social and economic policy—all these features of American government and many more are inherent in the controversy.

In 1947, in a precedent-making decision, the Supreme Court enunciated the principle that the federal government, not the states, has “paramount rights in and power over” the marginal seas which border the coastal states, and has “full dominion over the resources under that water area, including oil.”

For more than 150 years the littoral states had exercised uncontested jurisdiction and ownership over the marginal-sea area, subject only to the powers specifically granted to the national government by the Constitution. The states had regulated the fisheries within the three-mile limit, applying state laws to vessels licensed under federal statutes. Long before oil possibilities were thought of, they had granted or leased areas in the marginal seas to private persons and corporations for purposes of land reclamation and harbor development, dredging for sand and gravel, development of oyster beds, and similar projects. These property rights can far exceed in value the wealth to be derived from petroleum.

A just settlement of the issue, says the author, calls for restoration to the states of control of the marginal sea out to their historical boundaries—three miles in most cases; three leagues, or ten and one-half miles, in the case of Texas and the west coast of Florida.

This study is based upon thorough investigation of all literature on the subject and personal interviews and correspondence with leaders on both sides of the controversy.

Who organizes our time? Who decides when we must be at work and at school, when we set back our clocks, and when retail stores will close? Todd Rakoff traces the law's effect on our use of time and discovers that the structure of our time is gradually changing. As Rakoff demonstrates, the law's influence is subtle, and so ubiquitous that we barely notice it. But its structure establishes the terms by which society allocates its efforts, coordinates its many players, establishes the rhythms of life, and indeed gives meaning to the time in which we live. Compulsory education law, overtime law, daylight-saving law, and Blue Laws are among the many rules government uses to shape our use of time.

More and more, however, society, and especially the workplace, has come to see time simply as a quantity whose value must be maximized. As lawmakers struggle to deal with accelerating market demands, the average citizen's ability to organize his or her time to accommodate all of life's activities is diminishing. Meanwhile, it is increasingly hard to differentiate weekdays from weekends, and ordinary days from holidays. The law of time, Rakoff argues, may need refashioning to meet modern circumstances, but we continue to need a stable legal structure of time if we are to attain the ancient goal of a balanced life: "A Time for Every Purpose."

Joyce Malcolm illuminates the historical facts underlying the current passionate debate about gun-related violence, the Brady Bill, and the NRA, revealing the original meaning and intentions behind the individual right to “bear arms.” Few on either side of the Atlantic realize that this extraordinary, controversial, and least understood liberty was a direct legacy of English law. This book explains how the Englishmen’s hazardous duty evolved into a right, and how it was transferred to America and transformed into the Second Amendment.

Malcolm’s story begins in turbulent seventeenth-century England. She shows why English subjects, led by the governing classes, decided that such a dangerous public freedom as bearing arms was necessary. Entangled in the narrative are shifting notions of the connections between individual ownership of weapons and limited government, private weapons and social status, the citizen army and the professional army, and obedience and resistance, as well as ideas about civilian control of the sword and self-defense. The results add to our knowledge of English life, politics, and constitutional development, and present a historical analysis of a controversial Anglo-American legacy, a legacy that resonates loudly in America today.

From antebellum slavery to the twenty-first century, African American funeral directors have orchestrated funerals or “homegoing” ceremonies with dignity and pageantry. As entrepreneurs in a largely segregated trade, they were among the few black individuals in any community who were economically independent and not beholden to the local white power structure. Most important, their financial freedom gave them the ability to support the struggle for civil rights and, indeed, to serve the living as well as bury the dead.

During the Jim Crow era, black funeral directors relied on racial segregation to secure their foothold in America’s capitalist marketplace. With the dawning of the civil rights age, these entrepreneurs were drawn into the movement to integrate American society, but were also uncertain how racial integration would affect their business success. From the beginning, this tension between personal gain and community service shaped the history of African American funeral directing.

For African Americans, death was never simply the end of life, and funerals were not just places to mourn. In the “hush harbors” of the slave quarters, African Americans first used funerals to bury their dead and to plan a path to freedom. Similarly, throughout the long—and often violent—struggle for racial equality in the twentieth century, funeral directors aided the cause by honoring the dead while supporting the living. To Serve the Living offers a fascinating history of how African American funeral directors have been integral to the fight for freedom.

This book assesses the historical significance of the International Military Tribunal for the Far East (IMTFE)—commonly called the Tokyo trial—established as the eastern counterpart of the Nuremberg trial in the immediate aftermath of World War II.

Through extensive research in Japanese, American, Australian, and Indian archives, Yuma Totani taps into a large body of previously underexamined sources to explore some of the central misunderstandings and historiographical distortions that have persisted to the present day. Foregrounding these voluminous records, Totani disputes the notion that the trial was an exercise in “victors’ justice” in which the legal process was egregiously compromised for political and ideological reasons; rather, the author details the achievements of the Allied prosecution teams in documenting war crimes and establishing the responsibility of the accused parties to show how the IMTFE represented a sound application of the legal principles established at Nuremberg.

This study deepens our knowledge of the historical intricacies surrounding the Tokyo trial and advances our understanding of the Japanese conduct of war and occupation during World War II, the range of postwar debates on war guilt, and the relevance of the IMTFE to the continuing development of international humanitarian law.

American courts routinely hand down harsh sentences to individual convicts, but a very different standard of justice applies to corporations. Too Big to Jail takes readers into a complex, compromised world of backroom deals, for an unprecedented look at what happens when criminal charges are brought against a major company in the United States.

Federal prosecutors benefit from expansive statutes that allow an entire firm to be held liable for a crime by a single employee. But when prosecutors target the Goliaths of the corporate world, they find themselves at a huge disadvantage. The government that bailed out corporations considered too economically important to fail also negotiates settlements permitting giant firms to avoid the consequences of criminal convictions. Presenting detailed data from more than a decade of federal cases, Brandon Garrett reveals a pattern of negotiation and settlement in which prosecutors demand admissions of wrongdoing, impose penalties, and require structural reforms. However, those reforms are usually vaguely defined. Many companies pay no criminal fine, and even the biggest blockbuster payments are often greatly reduced. While companies must cooperate in the investigations, high-level employees tend to get off scot-free.

The practical reality is that when prosecutors face Hydra-headed corporate defendants prepared to spend hundreds of millions on lawyers, such agreements may be the only way to get any result at all. Too Big to Jail describes concrete ways to improve corporate law enforcement by insisting on more stringent prosecution agreements, ongoing judicial review, and greater transparency.

When President Eisenhower referred to the “military–industrial complex” in his 1961 Farewell Address, he summed up in a phrase the merger of government and industry that dominated the Cold War United States. In this bold reappraisal, Katherine Epstein uncovers the origins of the military–industrial complex in the decades preceding World War I, as the United States and Great Britain struggled to perfect a crucial new weapon: the self-propelled torpedo.

Torpedoes epitomized the intersection of geopolitics, globalization, and industrialization at the turn of the twentieth century. They threatened to revolutionize naval warfare by upending the delicate balance among the world’s naval powers. They were bought and sold in a global marketplace, and they were cutting-edge industrial technologies. Building them, however, required substantial capital investments and close collaboration among scientists, engineers, businessmen, and naval officers. To address these formidable challenges, the U.S. and British navies created a new procurement paradigm: instead of buying finished armaments from the private sector or developing them from scratch at public expense, they began to invest in private-sector research and development. The inventions emerging from torpedo R&D sparked legal battles over intellectual property rights that reshaped national security law.

Blending military, legal, and business history with the history of science and technology, Torpedo recasts the role of naval power in the run-up to World War I and exposes how national security can clash with property rights in the modern era.

In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom.

Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms.

Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.

When it comes to questions of religion, legal scholars face a predicament. They often expect to resolve dilemmas according to general principles of equality, neutrality, or the separation of church and state. But such abstractions fail to do justice to the untidy welter of values at stake. Offering new views of how to understand and protect religious freedom in a democracy, The Tragedy of Religious Freedom challenges the idea that matters of law and religion should be referred to far-flung theories about the First Amendment. Examining a broad array of contemporary and more established Supreme Court rulings, Marc DeGirolami explains why conflicts implicating religious liberty are so emotionally fraught and deeply contested.

Twenty-first-century realities of pluralism have outrun how scholars think about religious freedom, DeGirolami asserts. Scholars have not been candid enough about the tragic nature of the conflicts over religious liberty—the clash of opposing interests and aspirations they entail, and the limits of human reason to resolve intractable differences. The Tragedy of Religious Freedom seeks to turn our attention from abstracted, absolute values to concrete, historical realities. Social history, characterized by the struggles of lawyers engaged in the details of irreducible conflicts, represents the most promising avenue to negotiate legal conflicts over religion. In this volume, DeGirolami offers an approach to understanding religious liberty that is neither rigidly systematic nor ad hoc, but a middle path grounded in a pluralistic and historically informed perspective.

Departing from traditional approaches to colonial legal history, Mary Sarah Bilder argues that American law and legal culture developed within the framework of an evolving, unwritten transatlantic constitution that lawyers, legislators, and litigants on both sides of the Atlantic understood. The central tenet of this constitution—that colonial laws and customs could not be repugnant to the laws of England but could diverge for local circumstances—shaped the legal development of the colonial world.

Focusing on practices rather than doctrines, Bilder describes how the pragmatic and flexible conversation about this constitution shaped colonial law: the development of the legal profession; the place of English law in the colonies; the existence of equity courts and legislative equitable relief; property rights for women and inheritance laws; commercial law and currency reform; and laws governing religious establishment. Using as a case study the corporate colony of Rhode Island, which had the largest number of appeals of any mainland colony to the English Privy Council, she reconstructs a largely unknown world of pre-Constitutional legal culture.

In a remarkable book based on prodigious research, Morton J. Horwitz offers a sweeping overview of the emergence of a national (and modern) legal system from English and colonial antecedents. He treats the evolution of the common law as intellectual history and also demonstrates how the shifting views of private law became a dynamic element in the economic growth of the United States.

Horwitz's subtle and sophisticated explanation of societal change begins with the common law, which was intended to provide justice for all. The great breakpoint came after 1790 when the law was slowly transformed to favor economic growth and development. The courts spurred economic competition instead of circumscribing it. This new instrumental law flourished as the legal profession and the mercantile elite forged a mutually beneficial alliance to gain wealth and power.

The evolving law of the early republic interacted with political philosophy, Horwitz shows. The doctrine of laissez-faire, long considered the cloak for competition, is here seen as a shield for the newly rich. By the 1840s the overarching reach of the doctrine prevented further distribution of wealth and protected entrenched classes by disallowing the courts very much power to intervene in economic life.

This searching interpretation, which connects law and the courts to the real world, will engage historians in a new debate. For to view the law as an engine of vast economic transformation is to challenge in a stunning way previous interpretations of the eras of revolution and reform.

During his career at Harvard, Morton Horwitz changed the questions legal historians ask. The Transformation of American Law, 1780–1860 (1977) disclosed the many ways that judge-made law favored commercial and property interests and remade law to promote economic growth. The Transformation of American Law, 1870–1960 (1992) continued that project, with a focus on ideas that reshaped law as we struggled for objective and neutral legal responses to our country’s crises.

In this book, Horwitz’s students re-examine legal history from America’s colonial era to the late twentieth century. They ask classic Horwitzian questions, of how legal doctrine, thought, and practice are shaped by the interests of the powerful, as well as by the ideas of lawyers, politicians, and others. The essays address current questions in legal history, from colonial legal practice to questions of empire, civil rights, and constitutionalism in a democracy. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.

Over the course of his career at Harvard, Morton Horwitz changed the questions legal historians ask. The Transformation of American Law, 1780–1860 (1977) disclosed the many ways that judge-made law favored commercial and property interests and remade law to promote economic growth. The Transformation of American Law, 1870–1960 (1992) continued that project, with a focus on ideas that reshaped law as we struggled for objective and neutral legal responses to our country’s crises. In more recent years he has written extensively on the legal realists and the Warren Court.

Following an earlier festschrift volume by his former students, this volume includes essays by Horwitz’s colleagues at Harvard and those from across the academy, as well as his students. These essays assess specific themes in Horwitz’s work, from the antebellum era to the Warren Court, from jurisprudence to the influence of economics on judicial doctrine. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.

Winner of the Bancroft Prize
Winner of the David J. Langum Prize
Winner of the Lillian Smith Book Award
Winner of the Order of the Coif Book Award
Winner of the OAH Liberty Legacy Foundation Award
A New York Times Critics’ Top Book of the Year

“This extraordinary book is a powerful addition to the history of travel segregation…Mia Bay shows that Black mobility has always been a struggle.”
—Ibram X. Kendi, author of How to Be an Antiracist

“In Mia Bay’s superb history of mobility and resistance, the question of literal movement becomes a way to understand the civil rights movement writ large.”
—Jennifer Szalai, New York Times

“Traveling Black is well worth the fare. Indeed, it is certain to become the new standard on this important, and too often forgotten, history.”
—Henry Louis Gates, Jr., author of Stony the Road

From Plessy v. Ferguson to #DrivingWhileBlack, African Americans have fought to move freely around the United States. But why this focus on Black mobility? From stagecoaches and trains to buses, cars, and planes, Traveling Black explores when, how, and why racial restrictions took shape in America and brilliantly portrays what it was like to live with them.

Mia Bay rescues forgotten stories of passengers who made it home despite being insulted, stranded, re-routed, or ignored. She shows that Black travelers never stopped challenging these humiliations, documenting a sustained fight for redress that falls outside the traditional boundaries of the civil rights movement. A riveting, character-rich account of the rise and fall of racial segregation, it reveals just how central travel restrictions were to the creation of Jim Crow laws—and why free movement has been at the heart of the quest for racial justice ever since.

A thought-provoking examination of how insights from neuroscience challenge deeply held assumptions about morality and law.

As emerging neuroscientific insights change our understanding of what it means to be human, the law must grapple with monumental questions, both metaphysical and practical. Recent advances pose significant philosophical challenges: how do neuroscientific revelations redefine our conception of morality, and how should the law adjust accordingly?

Trialectic takes account of those advances, arguing that they will challenge normative theory most profoundly. If all sentient beings are the coincidence of mechanical forces, as science suggests, then it follows that the time has come to reevaluate laws grounded in theories dependent on the immaterial that distinguish the mental and emotional from the physical. Legal expert Peter A. Alces contends that such theories are misguided—so misguided that they undermine law and, ultimately, human thriving.

Building on the foundation outlined in his previous work, The Moral Conflict of Law and Neuroscience, Alces further investigates the implications for legal doctrine and practice.

Once upon a time, virtually no one in the academy thought to sue over campus disputes, and, if they dared, judges bounced the case on grounds that it was no business of the courts. Tenure decisions, grading curves, course content, and committee assignments were the stuff of faculty meetings, not lawsuits.

Not so today. As Amy Gajda shows in this witty yet troubling book, litigation is now common on campus, and perhaps even more commonly feared. Professors sue each other for defamation based on assertions in research articles or tenure review letters; students sue professors for breach of contract when an F prevents them from graduating; professors threaten to sue students for unfairly criticizing their teaching.

Gajda’s lively account introduces the new duo driving the changes: the litigious academic who sees academic prerogative as a matter of legal entitlement and the skeptical judge who is increasingly willing to set aside decades of academic deference to pronounce campus rights and responsibilities.

This turn to the courts is changing campus life, eroding traditional notions of academic autonomy and confidentiality, and encouraging courts to micromanage course content, admissions standards, exam policies, graduation requirements, and peer review.

This book explores the origins and causes of the litigation trend, its implications for academic freedom, and what lawyers, judges, and academics themselves can do to limit the potential damage.

Before 1854, most Northerners managed to ignore the distant unpleasantness of slavery. But that year an escaped Virginia slave, Anthony Burns, was captured and brought to trial in Boston--and never again could Northerners look the other way. This is the story of Burns's trial and of how, arising in abolitionist Boston just as the incendiary Kansas-Nebraska Act took effect, it revolutionized the moral and political climate in Massachusetts and sent shock waves through the nation.

In a searching cultural analysis, Albert J. von Frank draws us into the drama and the consequences of the case. He introduces the individuals who contended over the fate of the barely literate twenty-year-old runaway slave--figures as famous as Richard Henry Dana Jr., the defense attorney, as colorful as Thomas Wentworth Higginson and Bronson Alcott, who led a mob against the courthouse where Burns was held, and as intriguing as Moncure Conway, the Virginia-born abolitionist who spied on Burns's master.

The story is one of desperate acts, even murder--a special deputy slain at the courthouse door--but it is also steeped in ideas. Von Frank links the deeds and rhetoric surrounding the Burns case to New England Transcendentalism, principally that of Ralph Waldo Emerson. His book is thus also a study of how ideas relate to social change, exemplified in the art and expression of Emerson, Henry Thoreau, Theodore Parker, Bronson Alcott, Walt Whitman, and others.

Situated at a politically critical moment--with the Whig party collapsing and the Republican arising, with provocations and ever hotter rhetoric intensifying regional tensions--the case of Anthony Burns appears here as the most important fugitive slave case in American history. A stirring work of intellectual and cultural history, this book shows how the Burns affair brought slavery home to the people of Boston and brought the nation that much closer to the Civil War.

2008 — British-Kuwait Friendship Prize in Middle Eastern Studies – British Society for Middle Eastern Studies

A Tribal Order describes the politico-legal system of Jabal Razih, a remote massif in northern Yemen inhabited by farmers and traders. Contrary to the popular image of Middle Eastern tribes as warlike, lawless, and invariably opposed to states, the tribes of Razih have stable structures of governance and elaborate laws and procedures for maintaining order and resolving conflicts with a minimum of physical violence. Razihi leaders also historically cooperated with states, provided the latter respected their customs, ideals, and interests. Weir considers this system in the context of the rugged environment and productive agricultural economy of Razih, and of centuries of continuous rule by Zaydi Muslim regimes and (latterly) the republican governments of Yemen.

The book is based on Weir's extended anthropological fieldwork on Jabal Razih, and on her detailed study of hundreds of handwritten contracts and treaties among and between the tribes and rulers of Razih. These documents provide a fascinating insight into tribal politics and law, as well as state-tribe relations, from the early seventeenth to the late twentieth century. A Tribal Order is also enriched by case histories that vividly illuminate tribal practices. Overall, this unusually wide-ranging work provides an accessible account of a remarkable Arabian society through time.

Stanley Fish is an equal opportunity antagonist. A theorist who has taken on theorists, an academician who has riled the academy, a legal scholar and political pundit who has ruffled feathers left and right, Fish here turns with customary gusto to the trouble with principle. Specifically, Fish has a quarrel with neutral principles. The trouble? They operate by sacrificing everything people care about to their own purity. And they are deployed with equal highmindedness and equally absurd results by liberals and conservatives alike.

In this bracing book, Fish argues that there is no realm of higher order impartiality--no neutral or fair territory on which to stake a claim--and that those who invoke one are always making a rhetorical and political gesture. In the end, it is history and context, the very substance against which a purportedly abstract principle defines itself, that determines a principle's content and power. In the course of making this argument, Fish takes up questions about academic freedom and hate speech, affirmative action and multiculturalism, the boundaries between church and state, and much more. Sparing no one, he shows how our notions of intellectual and religious liberty--cherished by those at both ends of the political spectrum--are artifacts of the very partisan politics they supposedly transcend. The Trouble with Principle offers a provocative challenge to the debates of our day that no intellectually honest citizen can afford to ignore.

How can schools meet the needs of an increasingly diverse population of newcomers? Do bilingual programs help children transition into American life, or do they keep them in a linguistic ghetto? Are immigrants who maintain their native language uninterested in being American, or are they committed to changing what it means to be American?

In this ambitious book, Rosemary Salomone uses the heated debate over how best to educate immigrant children as a way to explore what national identity means in an age of globalization, transnationalism, and dual citizenship. She demolishes popular myths—that bilingualism impedes academic success, that English is under threat in contemporary America, that immigrants are reluctant to learn English, or that the ancestors of today’s assimilated Americans had all to gain and nothing to lose in abandoning their family language.

She lucidly reveals the little-known legislative history of bilingual education, its dizzying range of meanings in different schools, districts, and states, and the difficulty in proving or disproving whether it works—or defining it as a legal right.

In eye-opening comparisons, Salomone suggests that the simultaneous spread of English and the push toward multilingualism in western Europe offer economic and political advantages from which the U.S. could learn. She argues eloquently that multilingualism can and should be part of a meaningful education and responsible national citizenship in a globalized world.

DNA profiling—commonly known as DNA fingerprinting—is often heralded as unassailable criminal evidence, a veritable “truth machine” that can overturn convictions based on eyewitness testimony, confessions, and other forms of forensic evidence. But DNA evidence is far from infallible. Truth Machine traces the controversial history of DNA fingerprinting by looking at court cases in the United States and United Kingdom beginning in the mid-1980s, when the practice was invented, and continuing until the present. Ultimately, Truth Machine presents compelling evidence of the obstacles and opportunities at the intersection of science, technology, sociology, and law.