New Books In Law

Our Word is Our Bond: How Legal Speech Acts (Stanford UP, 2014), by UC Berkeley Professor of Rhetoric Marianne Constable, impels its readers to reassess the dominant methods of considering what is law. Constable’s study of law is informed by both philosophy and sociology; however, she avoids common approaches employed by both disciplines and instead conducts her legal analysis by searching for directives in the form of J.L. Austin’s “speech acts.” Her methods suggest that there is more of a connection between law-in-books and law-in-action than typical sociological research has proposed. Law-in-books, she argues, is active because it hears claims and makes claims within the context of a world that changes. An overview of the claims found within legal speech, such as promises, debts and warnings, reveals a dynamic force. Constable’s way of thinking about law insularly removes it from the debate between natural law and positive law. As the title Our Word is Our Bond suggests, the w

Bruce Ackerman is the Sterling Professor of Law and Political Science at Yale University. His book, We the People, Volume 3: The Civil Rights Revolution (Harvard UP, 2013) fills out the constitutional history of America’s “Second Reconstruction” period and makes a powerful argument that traditional understandings of the constitutional canon must be expanded to accurately reflect the American lawmaking process. The official constitutional canon is composed of the 1787 Constitution and the formal amendments to this document. However, Ackerman argues that the Supreme Court should give more deference to an operational canon that includes the landmark statutes, which are the legacy of the civil rights revolution. Ackerman reveals that the leaders of the civil rights movement actively avoided altering the Constitution through an Article V amendment because this method had failed during the first Reconstruction period. Instead, he lays out how they relied on constitution-altering techniques establi

My marginal comment, recorded at the end of the chapter on the Belzec trial in Michael Bryant‘s fine new book Eyewitness to Genocide: The Operation Reinhard Death Camp Trials, 1955-1966 (University of Tennessee Press, 2014), is simple:  “!!!!”  Text speak, to be sure, but it conveys the surprise I felt. One can ask many questions about the trials of the German guards and administrators of Belzec, Sobibor and Treblinka.  Why did it take so long to put them on trial?  How did the German public and government respond to the trials?  What do the trials say about German memory of the Holocaust? Bryant answers all of these questions thoughtfully and persuasively.  But, the heart of his book is a close study of the prosecution of a few dozen German soldiers, most of whom clearly had dirty hands.  He takes us step by step through the process of locating the accused and those who could testify against them, through the complexities of the German legal code, and through the testimony and eventual conv

Most people say “I’m sorry” a lot. After all, we make a lot of mistakes, most of them minor, so we don’t mind apologizing and expect our apologies to be accepted or at least acknowledged. But how many of our apologies are what might be called “strategic,” that is, designed to do nothing more than placate the person we have wronged and essentially exonerate ourselves? In other word, how many of our apologies are genuine? It’s a good question, but it raises another: what is a genuine apology? Does it involve an admission of guilt, remorse, a promise never to do it (whatever it is) again, compensation for the wrong?  That’s a good question too, but it, too, raises a question: how can we tell a strategic apology from a genuine one? Gnashing of teeth? Wailing? Weeping? Statements against interest? As Nick Smith points out in his insightful Justice through Apologies: Remorse, Reform, and Punishment (Cambridge University Press, 2014), we don’t usually ask any of

Bestiality is more often the subject of jokes than legal cases nowadays, and so it was in late eighteenth-century western New England, when, strangely, two octogenarians were accused in separate towns in the space of a few years. Doron S. Ben-Atar and Richard D. Brown each discovered one case while they were researching other books, but when they began talking to one another, they realized the cases might be at the root of something bigger. Taming Lust: Crimes Against Nature in the Early Republic (University of Pennsylvania Press, 2014) explores two New England accusations of bestiality crimes, the trials, and the death sentences imposed upon the defendants. In post-revolutionary America, in the Age of Reason, how could two old men face the gallows on charges that seemed more appropriate to the early 1640s? Ben-Atar and Brown unravel the personal, political, and religious entanglements that the cases represent. They provide a history of bestiality and its connection to sodomy or “crimes against nature,&

When we discuss the death penalty we usually ask two questions: 1) should the state be in the business of killing criminals?; and 2) if so, how should the state put their lives to an end? As Austin Sarat shows in his fascinating book Gruesome Spectacles: Botched Executions and America’s Death Penalty (Stanford University Press, 2014), these two questions are intimately related. The reason is pretty simple: if the state can’t find a legally and morally acceptable way to execute malefactors, then perhaps we need to ask seriously whether the state should be killing criminals at all. If the means cannot be found, then the end may well be unachievable. In Gruesome Spectacles, Sarat analyses hundreds of executions in an attempt to assess the degree to which we can kill criminals in legally and morally acceptable ways. What he discovers is that about three in a hundred American executions over the past century or so have gone badly wrong. Criminals who were supposed to have been put to death in a humane

Olivier Zunz is the author of Philanthropy in America: A History (Princeton University Press 2014). The paperback addition of the book has recently been published with a new preface from the author. Zunz is Commonwealth Professor of History at the University of Virginia. The book tracks the origins of philanthropy in America as a pact between the very rich and reformers. This was a movement that began in the Northeast, but then spread to the South where the construction of schools for African American children dominated the philanthropic agenda. The book also unearths the historic legal precedents related to how nonprofit organizations are regulated today, the introduction of tax exemption, and prohibitions on lobbying. In sum, Zunz places philanthropy, big and small, into the center of a conversation about the development of American democratic practices. It is a worthy ready for those interested in American politics, the role of the US in world affairs, and the nonprofit sector.Learn more about your ad choi

Why do we feel guilty–and sometimes hurt ourselves–when we harm someone? Why do we become angry–and sometimes violent–when we see other people being harmed? Why do we forgive ourselves and others after a transgression even though “the rules” say we really shouldn’t? In his fascinating book The Punisher’s Brain: The Evolution of Judge and Jury (Cambridge University Press, 2014), Judge Morris B. Hoffman attempts to answer these questions with reference to evolutionary psychology. As a working judge, Hoffman is in an excellent position to explore the dynamics of our instincts to punish and forgive. We are, he says, evolved to punish “cheaters”–ourselves and others–so as to maintain all-important bonds of trust and cooperation. But we are also evolved not to take punishment too far. When correction becomes too costly, we forgive so as to maintain social solidarity. Listen in to our fascinating discussion.Learn more about your ad choices. Vi

The constitution guarantees Americans freedom of religious practice and freedom from government interference in the same same. But what does religious liberty mean in practice? Does it mean that the government must permit any religious practice, even one that’s nominally illegal? Clearly not. You can’t shoot someone even if God tells you to. Does it mean, then, that religious liberty is a sort of fiction and that the government can actually closely circumscribe religious practice? Clearly not. The government can’t ban a putatively religious practice just because it’s expedient to do so. So where’s the line? In God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge University Press, Second Edition, 2014), Marci A. Hamilton argues that it’s shifting rapidly. Traditionally, the government, congress, and courts agreed that though Americans should enjoy extensive religious freedom, that freedom did not include license to do anything the religious might like. A sen

  In early America, the practice of “warning out” was unique to New England, a way for the community to regulate those who might fall into poverty and need assistance from the town or province. Robert Love’s Warnings: Searching for Strangers in Colonial Boston (University of Pennsylvania Press, 2014) is the first book about this forgotten aspect of colonial Massachusetts life since 1911. We perambulate with him around Boston’s streets on the eve of the Revolution. Dayton and Salinger present the legal basis of the warning system and the moral, religious and humanistic motives of those who enforced it. We interview legal historian Cornelia H. Dayton of the University of Connecticut about the book she wrote with fellow historian Sharon V. Salinger, of the University of California, Irvine. They discovered his “diary,” and from there found warrants and other documents that allowed them to reconstruct his world, as well as the biographies of the sojourners, soldiers, and me

In Birdmen: The Wright Brothers, Glenn Curtiss, and the Battle to Control the Skies (Ballentine Books, 2014), Lawrence Goldstone recounts the discovery and mastery of aviation at the turn of the twentieth century–and all the litigation that ensued. Foremost amongst the legal battles in early aviation was the suits waged between the Wilbur and Orville Wright and Glenn Curtiss. Goldstone offers an in depth view of that struggle. From the publisher: “While the Wright brothers’ contributions to aviation are so famous as to be legendary, the ruthlessness with which they stifled their competitors remains largely unknown. The feud between the Wright brothers and Glenn Curtiss was a collision of strong, unyielding, profoundly American personalities. On one side was a pair of tenacious siblings who together had solved the centuries-old riddle of powered, heavier-than-air flight. On the other was an audacious young motorcycle racer whose aircraft became synonymous in the public mind with death-defying

Federico Fabbrini is Assistant Professor of European & Comparative Constitutional Law at Tilburg Law School in the Netherlands. In his new book, entitled Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (Oxford University Press, 2014), Fabbrini analyses the constitutional implications of the highly complex European architecture for the protection of fundamental rights and the interactions between the various European human rights standards. By innovatively comparing this architecture with the United States Federal System, the book advances an analytical model that systematically explains the dynamics at play within the European multilevel human rights architecture. The book however also goes beyond simple theory and tests the model of challenges and transformations by examining four very interesting and extremely relevant case studies. In the end, a ‘neo-federal’ theory is proposed that is able to frame the dilemmas of ‘identity, equality, and supre

Stephen C. Neff‘s Justice Among Nations: A History of International Law (Harvard UP, 2014) is a book of breathtaking scope, telling the story of the development of international law from Ancient times to the present. It moves across many different cultures and parts of the world, with the express ambition of being a comprehensive intellectual history of international law. It moves among names that any student of international law will recognize, but also surveys unfamiliar sources and recovers their importance. Neff’s prose is both accessible and elegant. This book will surely become an enormously important resource for scholars and students interested in the field.Learn more about your ad choices. Visit megaphone.fm/adchoices

Professor Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law at George Washington University and co-author of the book Litigating War: Mass Civil Injury and the Eritrea-Ethiopia Claims Commission (Oxford University Press, 2013) with Won Kidane, Associate Professor of Law at the Seattle University Law School, and Thomas R. Snider, an international arbitrator at Greenberg Taurig. Their book goes to the heart and intricacies of the Eritrea-Ethiopia Claims Commission. Its analysis and comprehensiveness is certainly insightful and is a must-read for anyone wanting to learn about the commission and its context.  Professor Murphy discusses with us some of the contents of the book, providing details on the war that occasioned the commission, the commission’s establishment, its jurisdiction and other very pertinent issues relating to the commission’s work.Learn more about your ad choices. Visit megaphone.fm/adchoices

How do people make sense of their scriptures when they do not align with the way they envision these texts? This problem is faced by many contemporary believers and is especially challenging in relation to passages that go against one’s vision of a gender egalitarian cosmology. Ayesha Chaudhry, professor in the Department of Classical, Near Eastern and Religious Studies and the Institute for Gender, Race, Sexuality and Social Justice at the University of British Columbia, examines one such passage from the Qur’an, verse 4:34, which has traditionally been interpreted to give husbands disciplinary rights over their wives, including hitting them. In Domestic Violence and the Islamic Tradition: Ethics, Law, and the Muslim Discourse on Gender (Oxford University Press, 2013) Chaudhry offers a historical genealogy of pre-colonial and post-colonial interpretations of this verse and their implications. Through her presentation she offers portraits of the “Islamic Tradition” and how these vision

We tend to take for granted that much of the innovation in the technology that we use today, in particular the communication technology, is made possible because of standards. In his book Open Standards and the Digital Age: History, Ideology, and Networks (Cambridge University Press, 2014), Dr. Andrew L. Russell examines standards and the standardization process in technology with an emphasis on standards in information networks. In particular, Russell examines the interdisciplinary historical foundations of openness and open standards by exploring the movement toward standardization in engineering, as well as the communication industry. Paying careful attention to the politics of standardization, Russell’s book considers the ideological foundations of openness, as well as the rhetoric surrounding this ideology. Notable also is the consideration of standardization as a critique of previous ideology and a rejection of centralized control.Learn more about your ad choices. Visit megaphone.fm/adchoices

Arica Coleman did not start out to write a legal history of “the one-drop rule,” but as she began exploring the relationship between African American and Native peoples of Virginia, she unraveled the story of how the law created a racial divide that the Civil Rights movement has never eroded. Virginia’s miscegenation laws, from the law of hypo-descent to the Racial Integrity Act, are burned into the hearts and culture of Virginians, white, black and Indian. That the Blood Stay Pure: African Americans, Native Americans, and the Predicament of Race and Identity in Virginia (Indiana University Press, 2014)  demonstrates how people continue to insist on racial discrimination and racial purity even though the legal barriers have been lifted and the biological imperatives of “blood purity” have been discredited. Dr. Coleman traces the origins the one-drop rule–that one African American ancestor made a person “colored”–from the days of slavery to the present. She

In 1927 Russian-American legal theorist Alexander Sack introduced the doctrine of “odious debt.” Sack argued that a state’s debt is “odious” and should not be transferable to successor governments after a revolution, if it was incurred without the consent of the people; and not for their benefit. This doctrine has largely been rejected, with a firm presumption of “sovereign continuity” emerging instead: post-revolutionary governments must repay sovereign debt even if it was incurred to cover the personal expenses of plutocrats. If they fail to do so, their credit reputation is harmed. As Odette Lienau explains in a striking line, “we can now imagine prosecuting the leaders of a fallen regime for crimes against a state’s population while simultaneously asking that population to acknowledge and repay the fallen regime’s debts.” In Rethinking Sovereign Debt: Politics, Reputation, and Legitimacy in Modern Finance (Harvard University Press, 2014), L

In the book, The Fatigue of the SharÄ«’a (Palgrave, 2012), Ahmad Atif Ahmad explores a centuries-old debate about the permanence, or impermanence, of God’s law, and guidance, in the lives of Muslims. Could God’s guidance simply cease to be accessible at some point? Has such a “fatigue” already taken place? If so, how could one know for sure? What kinds of Muslims, and non-Muslims, have contributed to this debate? Ahmad ambitiously tackles these questions, and many more, in his meticulously researched and provocative monograph. In order to interrogate his topic, he surveys the many camps of the debate and also defines and problematizes key words such as sharÄ«’a, ijtihād, and madhhab. Although the text relies on a familiarity with the Islamic legal tradition, Ahmad’s style of writing, which constantly asks readers to reflect on key questions, allows even the uninitiated to benefit from and reflect on what it could mean for God’s guidance to fatigue. As a result

In The Struggle for Canadian Copyright: Imperialism to Internationalism, 1842-1971, Sara Bannerman narrates the complex story of Canada’s copyright policy since the mid-19th century. The book details the country’s halting attempts to craft a copyright regime responsive both to its position as a net importer of published work and to its peculiar political geography as a British dominion bordering the United States. Bannerman charts Canada’s early, largely unsuccessful effort to craft a less restrictive policy in the run up to, and aftermath of, the 1886 Berne Convention-the multilateral agreement that established the enduring framework for the international copyright system. The main obstacle, in the 19th and early 20th centuries, was Britain’s insistence on a uniform and Berne-friendly policy throughout the empire. Even as those imperial constraints fell away over the first half of the 20th century, Canada increasingly aligned with powerful net exporters like France and Britain–i