New Books in Law

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,” and show the consequences of keeping laws on the books that may have outlived the culture that introduced them. Ben-Atar and Brown examine a struggle between Federalists and evangelicals, on the one hand, against Jeffersonian Republicans and rational religionists on the other, to define morality in the emerging new republic. The book puts the accusation of bestiality squarely in the midst of a cultural cataclysm in America. Taming Lust combines riveting historical narrative with a compelling analysis. Even the footnotes are not to be missed. These two isolated cases help us understand not only the local history of western New England, but the national political struggles, the evangelical movement that bridged the New Divinity with the Second Great Awakening, and the transatlantic influences from England and France that so affected the lives of Americans in the 1790s. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 way were strangled, decapitated, set on fire, suffocated, and slowly poisoned. Apparently American authorities—however laudable their intentions—have found it quite difficult, practically speaking, to avoid “cruel and unusual punishment” when executing wrongdoers. It’s important to note that Gruesome Spectacles is not an anti-death penalty book. Sarat’s presentation of botched executions is balanced by consideration of the horrible crimes for which the ultimate penalty was imposed. What Sarat does–and we should thank him for it–is provide hard evidence on a crucial question: can we, realistically speaking, put criminals to death humanely? Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 sensible accommodation between church and state had to be made so that both the church and state could do their important work. According to Hamilton, in recent decades radical religious reformers have mounted a successful campaign to throw the idea of a sensible accommodation out the window. They have expanded the scope of religious liberty and thereby limited the ability of the government to protect citizens generally. In this sense, she says, religion–a force for great social good, in her mind–has been made into an instrument of harm for many Americans. Listen in. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 members of ethnic and religious minorities who were moving throughout the British Atlantic. They provide fresh insights into why people came to Boston and how long they stayed. Professor Dayton explains how she and Salinger provide a fresh, and perhaps controversial, interpretation of the role that warning played in the city’s civic landscape. Robert Love’s Warnings is a comparative legal history as well as social and political history of New England in the decade before the Revolution. Update (April 26, 2015): Sharon V. Salinger and Cornelia Dayton have received a major book award by the Organization of American Historians (OAH). Their book Robert Love’s Warnings: Searching for Strangers in Colonial Boston (University of Pennsylvania Press, 2014) won the Merle Curti prize for the best book in American social history. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 stunts. For more than a decade, they battled each other in court, at air shows, and in the eyes of the scientific and business communities. At issue were more than just the profits from a patent, but control of the means of innovation in a new age of rapid industrial change. The outcome of this contest of wills would shape the course of aviation history– and take a fearsome toll on the lives and livelihoods of the men involved.” Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 supremacy’ behind this multilevel architecture in Europe. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 visions of authority shape participants’ readings of scripture. In our conversation we discuss the ethics of discipline, idealized cosmologies, marital relationships, legal interpretations, Muhammad’s embodied model, Muslim feminist discourses, effects of colonialism, and the hermeneutical space between modernity and tradition. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 shows how Indians came to disavow their African American descent in the wake of the Virginia racial purity statutes, and how the Bureau of Indian Affairs process continues to perpetuate a fear of admitting racial mixing. She also reveals how one of the most famous Civil Rights cases of our time, Loving v. Virginia, is not about what everyone thinks; it is not, she argues, about the right of blacks and whites to marry. Dr. Arica L. Coleman is Assistant Professor of Black American Studies at the University of Delaware and a lecturer for the Center for Africana Studies at Johns Hopkins University. She has a four-year appointment to the Organization of American Historians Alana committee, which focuses on the status of African American, Latino/Latina American, Native American and Asian American histories and historians. Dr. Coleman has lent her expertise on the history and politics of race and identity formation to the Washington Post, Indian Country Today and most recently NPR’s “Another View,” a weekly program with a focus on contemporary African American issues. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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), Lienau unfolds the historical conditions from which this seeming inconsistency emerged. Seamlessly moving between case studies from the early 20th century to the present, Lienau discusses several different versions of this puzzle. Ultimately, Lienau ends up rejecting “sovereign continuity,” and arguing for the recognition of “principled default.” With revolutions and uprisings across the Middle East, and in Ukraine, this book’s argument will likely provoke lively discussion among lawyers, economists, political theorists, and historians. But lay people should ideally engage with the ideas as well. The book gives an extraordinary point of access into what is at stake in the work of enormous international organizations, such as the World Bank. *Photo by Frank DiMeo Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 of recounting competing angles of the debate, Ahmad leaves with the reader with enduring questions, rather than simple answers, regarding how or if the sharÄ«’a will indeed come to an end. If the legal schools, for example, arose at different times and in different contexts, why would they all meet a common future? As political struggles in the Middle East, North Africa, and the greater Muslim world continue, Ahmad’s timely book will likely interest not only Islamic studies scholars and legal historians, but also journalists, policy makers, and political scientists. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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–in large part, Bannerman shows, to strengthen the country’s image as a model international citizen. The Struggle for Canadian Copyright is a story of constraint–the country’s copyright independence was never won–but Bannerman’s account also highlights the historical contingency of the restrictive norms that dominate international IP policy. A companion website includes archival documents and other materials. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/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 as individuals stay in a state; consequently, there is a point at which not extending citizenship to those living within a state’s borders is grossly immoral, even for those who have settled without the state’s permission. Carens’ arguments about the moral constraints on the state’s rights to exclude eventuate in an argument in favor of open borders. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 was in high school. Perhaps due to Professor Wexler’s extensive experience in teaching Administrative Law, as well as his experience in the Executive Branch, the book would serve as an excellent preface for those law students who plan to take Administrative Law. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 about the importance of the nation-state to the conception of individual rights, but about the nature of historical change. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 fashion, this groundbreaking study will delight and benefit specialists and non-specialists alike. In our conversation, we talked about the shift from oral to written culture in early Islam, the contrast between the normative projects of Malik and al-Shafi’i, al-Shafi’i’s theory of language, the social and political reasons for the success of his legal theory, and the transmission of al-Shafi’i’s thought by his students. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 considered opinion in structuring legal boundaries. Ultimately, he views their positions not merely as academic debates over the minutia of religious opinions and injunctions but as ritual observance, which formulates a world ‘as if’ it were ideal. In our conversation we discuss abrogation, punishment, salvation, Abraham’s sacrifice, hadith transmission, Peircean notions of abduction, religious law, stoning, adultery, the role of scholars, and contemporary calls for reform. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 discrimination against African Americans. Having read Susan’s book, I now know that I was wrong. She ably tells the stories of a number of national organizations that pursued the agenda of the NAACP (and, for that matter, the Urban League) decades before the NAACP (and the Urban League) was founded. It would, I think, be a mistake to see Carle’s book as a “pre-history” of the organized struggle for racial justice; rather, it is more appropriate to see it as a book about the true beginning of that struggle. Listen in to our fascinating discussion. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 legal landscape in the early Meiji period and worked to reconcile their notions of morality and law. The book traces the formation of a legal profession in the nineteenth century, the ways that associations of legal advocates paved the way for the first political parties, and the emergence of the first private universities and law schools in Japan. It is a carefully wrought story that informs both the history of Japan and the global history of law. Enjoy! Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 exploring the battle over textbook reform in the twentieth-century US. Based on a close reading of high school curricular materials around the discipline of botany, with special attention to the emergence of “civic botany” as a pedagogical field, Shapiro’s book uses the debates over pedagogy, evolution, and the textbook industry to explore a number of issues that are of central importance to the history of science: the construction of authorship, the histories of reading practices, the co-emergence of economies and technologies, and the ways that urban and rural localities shape the nature of sciences and their publics. It is a gripping, moving, and enlightening story. Enjoy! Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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, forced executions from the public gallows into private rooms within prisons, created a mandatory legal procedure of “super due-process,” and sought to diminish cruel and unusual bodily harm to the offender. But have these adaptations nullified its original purposes? For instance, various studies have shown that the death penalty does not act a deterrent to criminals or serve retributive purposes to the victims and their families. Given these facts, what purposes does it serve, if any? Do these reasons justify retention of the practice? Listen in for more! Dr. Garland is Arthur T. Vanderbilt Professor of Law and Professor of Sociology at New York University. Peculiar Institution is the recipient of numerous awards including: 2012 Michael J. Hindelang Award (American Society of Criminology), 2012 Edwin H. Sutherland Award (American Society of Criminology), 2011 Barrington Moore Book Award (American Sociological Association), Co-Winner 2011 Mary Douglas Prize (American Sociological Association), A Times Literary Supplement Best Book of 2011, and the 2010 Association of American Publishers PROSE Award for Excellence. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 book follows some key from Xavier Hollander, the Happy Hooker, through small time corrupt officers (grass eaters) through to hardcore predatory corrupt police (meat eaters). Not only does Armstrong provide an entertaining history of the inquiry but he reveals the full gamut of social forces that make such inquiries difficult to implement successfully. Police corruption is an essential factor in any form of large scale illicit activity, be it prostitution, gambling or drugs. Police have a service to sell, namely protection, and there are many illegal operators who are willing to pay for it to ensure their business runs without interruption. While the Knapp Commission happened 40 years ago, the corruption still exists at varying levels in all communities. Armstrong’s book helps us understand how and why it happens and, especially, how difficult it can be to stop. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 Chicago Press, 2013), Thane Rosenbaum argues that we’ve gone way too far in our rejection of revenge. By denying the right to revenge, we have essentially asked people to do something that is impossible–squelch their very natural feeling that wrong-doers must pay in equal measure for the harms they brought. In order for the moral universe to be righted, scofflaws must pay–and be seen to have paid–for what they have done. Our laws recognize none of this, says Rosenbaum, and we should do something about it. We need to bring revenge, he argues, back in. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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, who is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School and an academically trained historian (PhD Chicago 1987), brings the perspective of both lawyer and historian to his work ways that teach us much about both the military history and the law of the period he considers. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 five justices of the Supreme Court to call into question both of the Court’s most economically significant previous decisions, one from the early days of the Republic, and one from the New Deal. In 1819, the Court agreed unanimously that the federal government could solve national problems: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” (James Marshall) In 1935, the vote on a similar question was five to four: “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” (Charles Evan Hughes) But the dissent in 1935 took a very different view, one that resonates with the conservative voices of 2012: “The right to contract is fundamental, and includes the privilege of selecting those with whom one is willing to assume contractual relations.” (James McReynolds) In 2012, the Court is now split 4-5, in the other direction, on both of these topics. Prof. Koppelman shows that the “necessary & proper” clause, held to trump states’ rights by Justice Marshall, is hollowed out by Justice Roberts’ opinion. And Justice McReynolds’ “right to contract,” made infamous by the Lochner court, has returned in ghostly form, as a new individual right not to contract with insurance companies. In economic matters, the tide of constitutional law is shifting. The power of the Tough Luck constitutional doctrine was not exercised because of Justice Roberts’ forbearance in preserving the Affordable Care Act on other grounds. But with the help of Prof. Koppelman’s lucid and persuasive book, any reader can now fully grasp the legal significance of this line of thinking. Its practical implications, meanwhile, are becoming visible in the context of Medicaid, because a secondary holding in the case empowered governors to refuse new federal money for health care for the working poor. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 well-edited volume. The timeliness of this book cannot be overstated. On Wednesday February 26, 2013, the Supreme Court hears arguments in the Voting Rights case of Shelby County v Holder. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 histories of opium, counterfeiting, and the police. In addition to being required reading for anyone working in the history of modern China or Japan, Grounds of Judgment is also of special note to readers interested in the ways that language, dialect, and translation have shaped modern history, legal reform, and international relations. Enjoy! Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 disobedient forms into the mainstream production and distribution industries. Barry Kernfeld is on the staff of the Special Collections Library of the Pennsylvania State University. He is the author of The Story of Fake Books: Bootlegging Songs to Musicians and What to Listen for in Jazz, and he is the editor of The New Grove Dictionary of Jazz. He is also a professional jazz saxophonist playing in Jazza-ma-phone and a clarinetist in local musical theater productions. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

“I am not smart. I invented smart to compel you to do what I want.” — The Reptile Any civil trial represents the culmination of many, many years of disciplined mental effort. Legal education generates learning, and the discovery process generates information.–Yet neither learning nor information can result in a verdict of liability. For that, you need a jury: and a jury operates, by design, on very different principles of decision-making. As Rebecca West wrote, “The whole point of a jury is that it is not learned … but chunks of laity, brought in for the special purpose of being unlearned.” Judges resolve the cases that can be decided by learning and logic. Attorneys settle out of court the ones that can be decided through gathering information.But in the end, when learned, reasonable people disagree, the case “goes to the jury” — and law professors lose interest. It is here that David Ball and Don Keenan‘s research begins. What happens in the mind of a juror? What factors actually decide close cases? Beginning in 2006, they undertook extensive empirical study to find out. Evolution, neuroscience, and even psychoanalysis play into the answer. Darwin, Skinner, and Freud all had it right: conscious thought processes are not as important as we think they are (and of course, as the annals show, this is true of judges as well as jurors). n all humans, deliberative processes are subject to primal, unconscious factors that place survival and safety ahead of everything else. This insight led Ball and Keenan to a metaphor and a method for litigators that have created a sensation in the plaintiffs’ bar: the Reptile. A creature of evolution, coiled deep in the human neurosystem, the Reptile compels jurors to heed certain kinds of arguments more than others. But the Reptile is not a base reflex: its values are also enthroned at the center of the American jury system. Ball and Keenan believe they have redeemed it from cooptation by the adherents of “tort reform.” In turn, they seek to harness it for plaintiffs: not only to win cases, but also to redress injustices of certain kinds. The Reptile is roused when there is a menace to its own genetic prospects, and such a menace can be discerned in many different kinds of cases. To hear Ball tell it, all defendants that can be seen to threaten the well-being of the community are looking more and more, in recent years, like food for the Reptile. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Lynn Stout‘s pathbreaking book Cultivating Conscience:How Good Laws Make Good People (Princeton University Press, 2010) represents a much-needed update to the discipline of law and economics. Using current social science and discarding threadbare premises, it develops new methods for theorizing and deploying law in its real-life context — starting from the simple observation that, as a matter of scientific fact, people are often remarkably and demonstrably unselfish. In updating her own field of study, Prof. Stout found herself, unexpectedly, calling into question one of its most cherished axioms. Scholars of law and economics had always begun with the assumption that people were “rationally selfish.” Cass Sunstein’s 2008 book Nudge called into question the first term of that formula; Prof. Stout, holder of an endowed chair in Corporate and Securities Law at UCLA, now challenges the second.On the evidence of this book, it seems more than possible that her insights will prove more significant in the long run. Lucidly summarizing the vast quantities of recent social-science research on so-called prosocial behavior, Cultivating Conscience shows how selfishness is overhyped as a driver of human conduct.Prof. Stout finds repeatedly that when there is a gap between actual legal structures and current legal theory, the problems are not with the law, but with the theory — problems rooted in certain academic cultures, unscientific thinking, and inattention to the empirically proven power of human conscience. The prospect of correcting these errors suggests a new direction for the field of law and economics. Conscience may turn out to be a policy tool as useful as incentivization. In fact, the power of Prof. Stout’s analytic framework, both as description and prescription, may make one-dimensional evaluation of legal incentives obsolete. Using the method proposed here, policymakers attentive to the key parameters of authority, conformity, and empathy may develop ways to “cue” conscientious behavior in a wide variety of social contexts. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Is comedian and cultural critic Bill Cosby right–that black youth suffer from a cultural pathology that leads them to commit more crimes than their white counterparts? Is the remedy to the high rate of offending by African American men the “shape up or get shipped out” perspective? Is there more to African American offending than poor parenting or lousy schools? James D. Unnever is the co-author (with Shaun L. Gabbidon) of the new book A Theory of African American Offending: Race, Racism, and Crime (Routledge, 2011). This book builds on the assertion of sociologist and cultural critic W. E. B. Du Bois that theories of African American life, culture, and especially crime must deal with the unique circumstances and worldview of black people living in America. Unnever and Gabbidon take this assertion seriously as they develop a theory that the reading public in general and criminologists and lawyers specifically, indeed all associated with the criminal justice system, should read. I’ve recommended this book to colleagues at the collegiate level in African American Studies, as well as to junior high and high school teachers working in predominantly African American schools. This book is a must read! Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

What can judges do to change society? Fifty-seven years ago, the Supreme Court resolved to find out: the unanimous ruling they issued in Brown v. Board of Education threw the weight of the Constitution fully behind the aspiration of social equality among the races. The possibilities of law as an engine of social justice seem to be encapsulated in the story of the decision — and in the many decades of resistance to its enforcement. Today, there are those who argue that the Court failed in its goal, since actual racial mixing in U.S. schools has declined steadily over the last 35 years. But in her new book, In Brown’s Wake: Legacies of America’s Educational Landmark (Oxford UP, 2011), Harvard Law School Dean Martha Minow argues that the legacy of Brown should be viewed in a larger context. Neither a self-executing mandate for racial equality nor a futile rhetorical exercise, the decision was destined to become a lodestar for a wide variety of reformers in all areas of American society — and beyond. In a series of case studies, Dean Minow’s book reveals how Brown, the milestone in American jurisprudence, took on meanings the judges never envisioned, in the hands of advocates who, in 1954, nobody could have expected. Whatever else it was, the decision was that vital ingredient to be coupled with any kind of action: an idea whose time had come. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Copyright is one of those topics over which even two saints disagreed. The legend has it that Saint Columba and Saint Finnian engaged in an argument as Columba had secretly, and without the latter’s permission, copied a Latin Psalter owned by Finnian. When Finnian found out about it, he requested the copy, but Columbia refused to give it back. Dermott, the King of Ireland, decreed “to every cow belong its calf, so to every book belong its copy.” In 1925 the former Assistant Register of Copyrights in the United States, Richard De Wolf, pointed out that “the progress of copyright law does not take place by revolutions, but by successive stages. It resembles the growth of a city, in which, as time goes on, some parts are torn down and others are devoted to new uses..” However, this process has been historically riddled with controversy and disagreement, and not only among saints. Authorship rights and other questions related to the intellectual property became issues of major importance with the advent of the industrial revolution, in particular, with the advancement of printing technologies. Even figures like Charles Dickens were concerned with the free circulation of British books abroad. English statutes to protect intellectual property were adopted as early as in 1624. As the international legal mechanisms protecting intellectual property have solidified, the critique, mainly emanating from the global south, about its monopolizing and exclusionary nature has intensified as well. The Universal Declaration of Human Rights contains provisions regarding the protection of private property as well as intellectual property. In particular, Article 27 of the Universal Declaration of Human Rights provides that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” But is it proper to think of the world of ideas and knowledge, the world, which as Rajshree Chandra argues, is inexhaustible and socially distributed, in the same way as we think of the world of tangibles such as clothes, cars, or houses? And what are the main problems associated with relying on normative justifications for private property while we consider moral underpinnings of property rights over knowledge? And if indeed the moral groundings of the right to intellectual property are the same as those of the right to the ownership of property, what conclusions should be made from the distributional consequences of the transnational enforcement of these rights? Chandra takes up all these questions and more in her fine new book Knowledge as Property, Issues in the Moral Grounding of Intellectual Property Rights (Oxford University Press, 2010). Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

One hallmark of important art, in any medium, is a thoughtful relation with artistic precursors. Every artist reckons with heroes and rivals, influences and nemeses, and the old work becomes a part of the new. In Adam Bradley’s seminal monograph on hip-hop lyrics, Book of Rhymes, legendary MC Mos Def describes his desire to participate in posterity: “I wanted it to be something that was durable. You can listen to all these Jimi records and Miles records and Curtis Mayfield records; I wanted to be able to add something to that conversation.” In the last thirty years, technology has transformed the conversation between past and present musicians: it is now possible to quote a previous work not only note for note, but byte for byte. The turntable and the sampler are the hip-hop artist’s quintessential instruments. The culture of hip-hop bricolage, coupled with intense commercial pressures in the recording industry and an inevitable proliferation of rip-off artists, has created difficult challenges for copyright law and for the concept of licensing. Several cultures must adapt to each other, and often they are doing so in the courtroom. In a study both comprehensively theoretical and rich with the voices of musicians and producers, Kembrew McLeod and Peter DiCola have addressed together both the legal and the cultural implications of digital sampling in the music industry. Creative License: The Law and Culture of Digital Sampling (Duke University Press, 2011), in tandem with related multimedia projects from the Future of Music Coalition, lays out what they have learned and suggests a way forward for the industry in the digital age. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

What kind of education are students at top American law schools getting? And how does that education influence their activities upon graduation? In Walter Olson‘s Schools for Misrule: Legal Academia and an Overlawyered America (Encounter Books, 2011), the author, an economist and not a lawyer, looks at what is happening at our nation’s elite law schools, and its implications for citizens, businesses, and taxpayers. Olson, a Senior Fellow at the CATO Institute, describes what he calls the consensus view of law school faculties, and how hard it is for law students to find alternative points of view. He describes how the litigation explosion’s origins stem from the views of one influential professor, and the costs that this “American disease” imposes on our economy. In addition, he describes some revealing conflicts between trial lawyers and their allies that reveal the financial incentives motivating the testimony of certain scholars in favor of costly and often frivolous lawsuits. Read all about it, and more, in Olson’s penetrating new book. Please become a fan of “New Books in Public Policy” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Wrongful conviction is, both morally and practically, the worst mistake that society can inflict on an individual. From Franz Kafka to Errol Morris, from Arthur Koestler to Harper Lee, Western culture is deeply shaken at the prospect of the innocent person condemned. Outside of fiction, it used to be nearly impossible to prove a convict’s innocence to a level of certainty that could overturn the judgment of a jury: after all, twelve peers have found that it would be unreasonable even to doubt his guilt. In the absence of procedural error, society lacked any way to correct such a verdict. But in the late nineteen-eighties, with the advent of reliable DNA testing, that changed. One wrongful conviction is a tragedy; a hundred thousand wrongful convictions is a statistic. In his new book Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard UP, 2011), Brandon L. Garrett tries to bridge the gap between the two. Drawing on court records and archives at the Innocence Project, he presents an extensive analysis of two hundred and fifty erroneous convictions for extremely serious crimes. The data, unique in history, constitute a perfect ‘natural experiment’ for evaluating the weaknesses of the criminal-justice system. The stories Garrett brings to light are horrifying in their routine simplicity and in the absence of malice that led to such unjust results. Moreover, the exonerees’ faulty trials share many common elements, and the patterns of error Garrett has identified point the way toward crucial reforms. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Why did Reconstruction fail? Why didn’t the post-war Federal government protect the civil rights of the newly freed slaves? And why did it take Washington almost a century to intercede on the behalf of beleaguered, oppressed African Americans in the South? In a terrific new book, Charles Lane explains why. The Day Freedom Died. The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Henry Holt, 2008) tells the tale of a little-known though remarkably important incident: the murder of close to 100 freedmen by a posse of White supremacists in Louisiana in 1873. Charles does an excellent job of narrating this heart-wrenching and disturbing event. The book would be worth reading for that story alone. But he really comes into his own in describing the legal aftermath of the slaughter. With all the skill of a seasoned reporter–which he is–Charles chronicles the passage of the Colfax case from the courts of New Orleans to the U.S. Supreme Court. The result was a landmark decision–United States v. Cruikshank–that effectively placed the civil rights of Southern African Americans in the hands of Southern Whites for almost a century, with predictable results. A must-read for anyone interested in Reconstruction, constitutional law, and the sad history of race-relations in the United States. Please become a fan of “New Books in African American Studies” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Franklin D. Roosevelt promised the country “bold, persistent experimentation” to address the Great Depression – but for quite a while his ideas were a little too bold for the justices of the Supreme Court, who struck down many New Deal laws as unconstitutional. FDR had his day: over the years he replaced many of those justices with his own men, New Dealers who then, as judges, worked boldly with the Constitution. Irascible, ingenious, and remarkably uncooperative, the four justices in Noah Feldman‘s Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (Twelve, 2010) – Frankfurter, Douglas, Black, and Jackson – grappled with fundamental questions about government that are re-emerging in the Obama era. We have to answer them again, but Prof. Feldman has given us a constitutional handbook that is also an absorbing and entertaining quadruple biography. In our conversation, he situates the book among his other, quite disparate writings, and explains what lessons we should draw from the FDR Court for the current (remarkably similar) moment in politics and constitutional law. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Clausewitz famously said war was the “continuation of politics by other means.” Had he been unfortunate enough to witness the way the Wehrmacht fought on the Eastern Front in World War II, he might well have said war (or at least that war) was the “continuation of politics by any means.” Hitler was terribly specific about this. The Slavs, he said, were Untermenschen (subhumans). The Communists were Judeo-bolschewisten (Jewish Bolsheviks). Soviet soldiers were keine Kameraden (not comrades-in-arms). The East was future German Lebensraum (living space). All this meant that the ordinary rules of armed conflict had to be suspended. The German armed forces were to conduct a Vernichtungskrieg, a war of annihilation. The German military had never been in the business of wanton destruction. On the contrary, it prided itself on being the most professional fighting force in the world. It was admired for many things, but two of them were honor and loyalty. And it was the clash of these two otherwise laudable traits that got the Wehrmacht in deep trouble, for Hitler essentially ask the German military to choose between the two in the East. Would the army uphold the traditional, honorable ideal of civilized military conduct, or would it remain loyal to Hitler and prosecute his Vernichtungskrieg? As Valerie Hebert shows in her remarkable Hitler’s Generals on Trial: The Last War Crimes Tribunal at Nuremberg (University Press of Kansas, 2010), they chose the latter course. At Hitler’s request, they murdered civilians, starved prisoners of war, and enslaved occupied peoples by the millions. So it’s little wonder that after the war the victors called the leaders of the Wehrmacht to account for their thoroughly criminal behavior. And here they behaved no better, for they lamely claimed that they didn’t commit these outrages, didn’t know others were committing them, or were under orders so they had no choice. When they did admit to killing thousands in one or another Aktion, they claimed it was military necessity or that they were forced to be brutal because the Soviets were more brutal still (a pathetic instance of blaming the victim). Given the setting (their honor and even lives were on the line), it’s not surprising that they lied and rationalized. What is more unsettling is that they showed little or no remorse for what they had done (during or after the trials) and that they enjoyed considerable sympathy within the German population. As Valarie points out, the Germans mounted large campaigns both against the Nuremberg proceedings and for the release of the Wehrmacht-criminals after they had been incarcerated. The former were unsuccessful, though the latter resulted in the premature release of nearly all those convicted in the Wehrmacht trials. Please become a fan of “New Books in History” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Most everyone has heard of the Nuremberg Trials. Popular books have been written about them. Hollywood made movies about them. Some of us can even name a few of the convicted (Hermann Goering, Albert Speer, etc.). But fewer of us know about what might be called “Nuremberg East,” that is, the Toyko trials held after the defeat of the Japanese in World War Two. These proceedings generated few books, no movies, and therefore occupy only a minor place in Western historical memory. Thanks to Yuma Totani’s excellent book, The Tokyo War Crimes Trials. The Pursuit of Justice in the Wake of World War II (Harvard, 2008; also available in Japanese here), that may change. We should hope it does, because the Tokyo trials were important. They not only helped the Japanese come to terms with what their government and military had done during the war (truth be told, they are still coming to terms with it today), but it also set precedents that are still being applied in international law today. More than that, Totani offers a challenging interpretation of the trials. They weren’t so much “victor’s justice” (the common interpretation in Japan) as a lost opportunity. Reading her book one can’t help but get the feeling that the Americans and their confederates bungled the trials badly. Instead of trying to establish personal responsibility in all cases, the Allies simply arrested the upper echelons of the Japanese civil and military elite and selected those who were “representative” for indictment. Those who were not indicted–though probably just as culpable as those who were–were set free, giving rise to the myth that they had brokered deals with the Americans. The prosecution was headed by an inattentive alcoholic (Joseph Keenan) who preferred interrogating the accused to gathering hard documentary evidence. The defense was comprised of ill-prepared Japanese attorneys and their less-than-helpful Allied aids. Confusion reigned in the courtroom. And of course there were significant translation problems throughout. The trials were something of a farce. I always wondered why many Japanese today don’t think very highly of the Tokyo proceedings. Now, thanks to Yuma Totani’s informative book, I have a better understanding of why. Please become a fan of “New Books in History” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Did you ever wonder how we got from a moment in which almost everything on film could be censored (the Progressive Era) to the moment in which nothing on film could be censored (today)? From the Nickelodeon to Deep Throat? The answer is provided by Laura Wittern-Keller and Raymond J. Haberski in their wonderful new book The Miracle Case: Film Censorship and the Supreme Court (University of Kansas Press, 2008). You’ve probably never heard of “The Miracle” or the case it launched in 1949. It’s a short film by Roberto Rossellini about a deranged women who, having slept with a man she believes is St. Joseph, gives birth to a child in a deserted mountain church. Fellini has a bit part (as “Joseph”). Critics generally liked it; Catholics in New York generally didn’t. The Church mounted a campaign against the film and the authorities relented: “The Miracle” was banned on the grounds that it was “sacrilegious.” In 1949, those were fine grounds. Not for long. The film’s distributor–the feisty Joseph Burstyn–fought for the right to exhibit it all the way to the Supreme Court in 1952. And he won. Between 1952 and 1965, the states got out of the film-censorship business and we entered a new era of free-speech absolutism when it comes to film. One wonders if that’s a good thing. Please become a fan of “New Books in History” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

This week we interviewed Laura Wittern-Keller about her new book, Freedom of the Screen: Legal Challenges to Film Censorship 1915-1981. Both well written and extremely well researched, Freedom of the Screen takes the reader case by case through the history of film censorship in the United States. Dr. Wittern-Keller is a visiting assistant professor of history and public policy at the University at Albany (SUNY) and is also the recipient of the New York State Archives Award for Excellence in Research. Francis G. Couvares, author of Movie Censorship and American Culture, claims that “[Dr. Wittern-Keller’s] research is prodigious and fills a significant gap in the field. All who are engaged in this field will have to incorporate her findings into their stories of movie censorship.” Please become a fan of “New Books in History” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law