New Books In Law

It is commonly assumed that states have a right to broad discretionary control over immigration, and that they may decide almost in any way they choose, who may stay within the territory and who must leave.  But even supposing that there is such a right, we may ask the decidedly moral question about how it may be exercised.  And this query calls us to try to bring our views about the ethics of immigration into equilibrium with our other moral convictions about citizenship, liberty, and equality.   Can our common views and practices concerning immigration be rendered consistent with these deeper commitments? In The Ethics of Immigration (Oxford University Press, 2013), Joseph Carens argues that our common commitment to democratic principles requires us to revise much of our thinking about immigration.  Beginning with the uncontroversial practice of granting citizenship immediately to those born within a country’s territory, Carens argues that claims to social membership and thus to citizenship strengthen

Patrick Weil is the author of The Sovereign Citizen: Denaturalization and the Origins of the American Republic (University of Pennsylvania Press, 2013). He is a visiting Professor of Law at Yale Law School and a senior research fellow at the French National Research Center in the University of Paris 1, Pantheon-Sorbonne. The Sovereign Citizen is an historical study of denaturalization in the United States. It tells the story of what Weil believes is a revolution in the concept of citizenship, through exhaustive archival research. But is also a story about the actors that have made law what it is – immigrants, political radicals, criminal defense lawyers, bureaucrats, and judges.  Learn more about your ad choices. Visit megaphone.fm/adchoices

Boston University School of Law Professor Jay Wexler offers readers an entertaining and enlightening tour through a “constitutional zoo” of ten strange-yet-important provisions of the Constitution of the United States in The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions (Beacon, 2012). As the nation’s foremost scholar of Supreme Court laughter (he could claim he invented the burgeoning field), Professor Wexler proves in this book that he is not just a critic of legal humor, Professor Wexler is a master himself. On the serious side, the work succeeds in using ten oft-forgotten constitutional provisions as a means of illustrating how contemporary problems are imbued with constitutional issues. Inspired by his time at the Justice Department’s Office of Legal Counsel providing legal advice to the Executive Branch, Professor Wexler’s book will delight both the most seasoned legal veterans and even those whose last brush with the Constitution wa

The Last Utopia: Human Rights in History (Harvard University Press 2010) takes the reader on a sweeping journey through the history of international law from the ancient world to the present in search for an answer to the question: where did human rights come from? The book’s author, Columbia University intellectual historian Samuel Moyn examines, in turn, Enlightenment humanism, socialist internationalism, horror at twentieth-century genocide, anti-colonialism, and the civil rights movement. But he concludes that these were not sufficient individually or collectively to account for the emergence this key term of our contemporary political vocabulary. Human rights has, as Moyn tells us in this interview, a more recent and surprising vintage. I have never read a book that devoted so much space to where something wasn’t and to why it wasn’t there. Yet in Moyn’s explanation of the non-existence of human rights until its breakthrough moment in the 1970s, we learn a great deal not only abou

In his brilliant new book, The Canonization of Islamic Law: A Social and Intellectual History (Cambridge UP, 2013), Ahmed El Shamsy, Assistant Professor of Islamic Studies at the University of Chicago, explores the question of how the discursive tradition of Islamic law was canonized during the eighth and ninth centuries CE. While focusing on the religious thought of the towering Muslim jurist Muhammad b. Idris al-Shafi’i (d. 820) and the intellectual and social milieu in which he wrote, El Shamsy presents a fascinating narrative of the transformation of the Muslim legal tradition in early Islam. He convincingly argues that through al-Shafi’i’s intervention, a previously mimetic model of Islamic law inseparable from communal practice made way for a more systematic hermeneutical enterprise enshrined in a clearly defined scriptural canon. Through a rich and multilayered analysis, El Shamsy shiningly demonstrates how and why this process of canonization came about. Written in a remarkably lucid

How should one understand Islamic law outside of its application? What happens when we think about religious jurisprudence theoretically? For medieval Muslim scholars this was the field where one could enumerate the meaning and purpose of Islamic law. But to the uninitiated these justifications for legal thinking are submerged in rote repetition of technical language and discourses. Luckily for us, Rumee Ahmed, professor in the Department of Classics, Near Eastern and Religious Studies at the University of British Columbia, Vancouver, dives into the depths of various legal theory manuals to draw narrative understandings of shari’a to the surface. In Narratives of Islamic Legal Theory (Oxford University Press, 2012), Ahmed examines two formative contemporaneous jurists from the Hanafi school of law to determine the relationship between law and ethics through legal discourses. He focuses on the nature and meaning of the Qur’an, the role of the sunnah (the Prophetic example), and the use of considere

Historians tell stories, and stories have beginnings and ends. Most human eras, however, are not so neat. Their beginnings and ends tend to blend into one another. This is why historians are often arguing about when eras–the Roman Empire, the Middle Ages, the Renaissance, etc.–started and stopped. One usually learns very little from these debates, primarily because the established beginnings and endings were agreed upon for good reason. Nothing really big had been missed, so nothing really big has to be changed. But there are exceptions, times when historians discover–or at the very least bring to light–evidence that truly moves the chronological bounds of an era or movement. One such exception is Susan D. Carle‘s excellent new book Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford UP, 2013). I will only speak for myself, but I always considered the formation of the NAACP in 1909 to be the beginning of the organized, national effort to fight discr

In global narratives of modern legal history, Asia tends to fall short relative to Europe and the US. According to these narratives, while individuals in the West enjoyed political participation and protection, people in Japan did not, and this was due largely to the absence of a distinction between public and private law. In Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth-Century Japan (Harvard University Asia Center, 2013), Darryl E. Flaherty upends this narrative in a fascinating story of nineteenth century legal culture in Edo Japan. Early nineteenth-century Edo society already had a vibrant legal culture of engaged private practitioners, and by the late century they had paved the way for a codification of public and private law, and a transformation in the social meaning of law in Japan. Flaherty guides readers through the spaces of private legal practice in pre-Meiji society, and the careers of individual legal advocates who practiced in the midst of a transforming

During the 1924-25 school year, John Scopes was filling in for the regular biology teacher at Rhea County Central High School in Dayton, Tennessee. The final exam was coming up, and he assigned reading from George W. Hunter’s 1914 textbook A Civic Biology to prepare students for the test. What followed has become one of the most well-known accounts in the history of science and one of the most famous trials of twentieth-century America. In Trying Biology: The Scopes Trial, Textbooks, and the Anti-Evolution Movement in American Schools (University of Chicago Press, 2013), Adam R. Shapiro urges us to look beyond the rubrics of “science” and “religion” to understand how the Scopes trial became such an important event in the histories of both.  The story begins with a pair of Pinkerton detectives spying on a pair of textbook salesmen in the Edwards Hotel in Jackson, Mississippi. Shapiro brings us from that hotel room into a series of classrooms, boardrooms, and courtrooms while explo

Why is it that the United States continues to enforce the death penalty when the rest of the Western world abolished its use a little over three decades ago? That question, along with many other equally important questions, is at the heart of Dr. David Garland‘s recent book Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press, 2010). His provocative study highlights the uneven application of capital punishment America–a phenomenon widely discussed but rarely understood–and offers a succinct and thoughtful analysis of the historical roots of this contemporary problem. Comparing the modern form of state execution (lethal injection) with original, brutal, forms of state execution (pressing, dismemberment, burning, beheading), Garland dissects the sociocultural and political uses of capital punishment and how they changed over the centuries, evolving to meet the needs of a modern liberal democracy. These liberal adaptations, as Garland explains, fo

Anyone who studies police corruption will be aware of the Knapp Commission that examined allegations of police corruption in New York City in the 1970s. Not only was this famous because of the movie Serpico, but also most of the terminology used in corruption studies of police came from the report of the commission. Michael F. Armstrong was the chief counsel to the commission and this book is a history of the formation and operation of the inquiry. Holding a major commission of inquiry is not something that is done routinely. In his own words, Armstrong says they “fumbled” along working out how one discovers, let alone investigates corrupt police. They Wished they were Honest: The Knapp Commission and New York City Police Corruption (Columbia Press, 2012)reads like an extended episode of The Wire, combining political elements with investigative planning and transcripts of surveillance recordings of bribe negotiations. It is very revealing of the nature of corruption that existed at the time. The b

All humans have an emotionally-driven sense of fairness. We get treated unfairly and we get mad. It’s no wonder, then, that our laws–and those of almost everyone else–are intended to assure that people are treated fairly. When those laws fail and we are treated unfairly, we encounter another human universal–the desire for revenge. If someone pokes you in the eye, more likely than not your first inclination is going to be to poke them in the eye too. That “eye-for-an-eye” logic just feels intuitively fair to us. Yet, our laws–and those of most “civilized” places–explicitly deny victims the right to avenge their injuries. The state has a monopoly on justice, and the state’s justice (theoretically) has nothing to do with revenge. The courts asks victims to check their “irrational” desire for revenge and pursue what is (supposedly) a higher, more “rational” form of justice. In Payback: The Case for Revenge (University of Ch

A friend of mine who had just graduated from law school said “Law school is great. The trouble is that when you are done you’re a lawyer.” Steven J. Harper would, after a fashion, agree (though he would probably add that law schools are not that great). Harper’s book, The Lawyer Bubble: A Profession in Crisis (Basic Books, 2013), is a stem-to-stern indictment of legal education and the legal profession; he argues that the entire system by which we train and employ (or don’t employ) attorneys is broken. Honesty, humility, and public service are out; “truthiness,” hubris, and greed are in. The very idea of what it means to be a lawyer has been corrupted. Happily, Harper has some suggestions about how we might reform the legal industry. This is a terrific and thought provoking book.Learn more about your ad choices. Visit megaphone.fm/adchoices

James Whitman wants to revise our understanding of warfare during the eighteenth century, the period described by my late colleague and friend Russell Weigley as the “Age of Battles.” We commonly view warfare during this period as a remarkably restrained affair, dominated by aristocratic values, and while we recognize their horrors for the participants, we often compare battles to the duels those aristocrats fought over private matters of honor. Not true, claims Whitman, who argues instead that battles during the period 1709 (Battle of Malplaquet) and 1863/1870 (Gettysburg/Sedan) were understood by contemporaries not to be royal duels but “legal procedure[s], a lawful means of deciding international disputes through consensual collective violence.” [3] Understanding war as a form of trial is what gave warfare of the era its decisiveness (sorry Russ) and forces us, according to Whitman, to change the way we interpret, for example, Frederick the Great’s invasion of Silesia. Whitman

Every hundred years or so, the Supreme Court decides a question with truly vast economic implications. In 2012 such a decision was handed down, in a case that had the potential to affect the economy in the near term more than any court case ever had. The substance of the case, and its lasting legal implications, are the subject of Andrew Koppelman’s The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2012). The plaintiffs in the “Obamacare” case, NFIB v. Sebelius, had political and legal goals. Politically, they failed, because Justice Roberts was not willing to undo the huge Congressional effort to reform the country’s health-insurance system. But legally, in terms of doctrine, the litigation was a smashing success, altering principles that reach back hundreds of years. Andrew Koppelman has written a superb layman’s guide to what was at stake, legally, in last year’s case — and what the plaintiffs accomplished. They persuaded f

You may well have seen “Numb3rs,” a TV show in which mathematicians help solve crimes. It’s fiction. But, as Leila Schneps and Coralie Colmez show in their eye-opening new book Math on Trial: How Numbers Get Used and Abused in the Court Room (Basic Books, 2013) math does play a role in criminal prosecution. Alas, it’s often bad math and, as such, often leads to bad outcomes: people get off who shouldn’t and others get convicted who shouldn’t. Schneps and Colmez show how math has been misused in ten interesting (and disturbing) cases. In some instances the errors are trivial; in others rather complex. But they all add up (excuse the pun) to injustice. Listen in and find out how and why.Learn more about your ad choices. Visit megaphone.fm/adchoices

Daniel McCool, professor of political science at the University of Utah, is the editor of The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act (Indiana University Press, 2012). The VRA was one of the center pieces of the civil rights legislation passed in the 1960s. The Act aimed to address great inequities in access to and participation in voting, particularly among African Americans. Perhaps most controversially, the law labeled a handful of states that were deemed the most egregious violators of voting rights, and required them to gain pre-clearance from the Department of Justice on any changes in state voting procedures. Nearly fifty years later, is the case for the VRA still so pressing or are modifications or a complete overhaul called for? This timely collection provides deep theoretical and empirical justifications for the VRA, and equally well-developed arguments in opposition. One finished the collection more informed and a little unsure of what is called, both signs of a we

In their book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It (Basic Books, 2012), Richard Sander and Stuart Taylor, Jr. present the following big idea: race preferences in higher education harm those preferred. Their argument is interesting in that it is not premised on the idea that racial preferences are unfair. Rather, they crunch the numbers and show that when good minority students are placed among elite students at elite schools, they often fail; when they are placed among other good students at good schools, they do much better. Students, they say, need to be “matched” with students at their level, not “mismatched” (or, rather, overmatched) with students far above their level. Both Sanders and Taylor are very much in favor of Affirmative Action, though they would like to see it reformed. Listen in and see how.Learn more about your ad choices. Visit megaphone.fm/adchoices

Extraterritoriality was not grafted whole onto East Asian societies: it developed over time and in a relationship with local precedents, institutions, and understandings of power. Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford University Press, 2012) uses a trans-regional and transnational focus to explore the history of extraterritoriality and the treaty port system in nineteenth century societies. Eschewing the kinds of teleological narratives that privilege current nation states, Par Cassel locates late Qing, Tokugawa, and Meiji debates in a deep history of legal pluralism, notions of “foreign” identity, and inter-ethnic relations. Cassel uses an impressive range of press accounts, legal texts, and other sources to unfold the ways that the very different trajectories of extraterritoriality in China and Japan had very different consequences for the two countries. Cassel’s book ranges across some fascinating case studies from the hi

Have you ever illegally downloaded a song from the internet? How about illicitly burned copies of a CD? Made a “party tape?” Bought a bootleg album? You may have done these things, but have you purchased a bootlegged song-sheet? In Pop Song Piracy: Disobedient Music Distribution Since 1929 (University of Chicago, 2011) Barry Kernfeld fills us in on the history of disobedient music reproduction and distribution since, well, before the advent of recording technology. Along the way he discusses the above mentioned disobedient distribution techniques along with a few others: fake books, music photocopying, and pirate radio round out the book. Kernfeld suggests that the history of pop music piracy is never ending, with battles of different types of disobedience taking similar forms: the music “monopolists” (song owners) attempting to enact prohibitions on illegal production and distribution, the failed containment of said production and distribution systems and, finally, the assimilation of