Contributions to Books

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  A Profession of IT's Own: The Rise of Health Information Professionals in American Healthcare

  Mark C. Suchman and Matthew Dimick

  Published as Chapter 8 in Medical Professionalism in the New Information Age, David J. Rothman & David Blumenthal, eds.

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  Stability, Integration and Political Modalities: Some American Reflections on the European Project After the Financial Crisis

  David A. Westbrook

  Published as Chapter 22 in Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts, Pieter H. F. Bekker, Rudolf Dolzer & Michael Waibel, eds.

  To those of us concerned with transnational law, and especially the role of German law on the global stage, it does not need saying that Professor Detlev Vagts is highly deserving of that Germanic and traditional scholarly honour, a Festchrift. (In this context, ‘does not need saying’ of course means ‘should be said repeatedly’.) We all owe Detlev Vagts, and as a Germanic traditionalist, I would be delighted to contribute to this volume on general principle, even if I did not know the man. But I also have personal reasons for wanting to honour Professor Vagts: he taught the basic course in corporations to generations of students at Harvard Law School. In addition, Vagts was one of the advisors to the Ford Fellows Program, which was designed to foster international law teachers. After being one such student and one such fellow, in due course I became a teacher of international and corporation law, so I owe Vagts a double debt of professional gratitude. And, as with so many other young (or once young) scholars, Vagts has been cordially supportive of my efforts to find my way in the academy, for which I am most grateful.

  Such things said, however, there is another reason I am happy to have the chance to contribute to this Festschrift. A certain delicacy is called for here, especially since writing for Vagts carries me halfway back to Harvard, where such things are taken so seriously.

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  Accommodation Tangles in the Laws over Hair

  Seval Yildirim

  Published in Law & Religion: Cases in Context, Leslie C. Griffin, ed. (Aspen 2010).

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  Islamic Law

  Seval Yildirim

  Published in Modern Muslim Societies (Muslim World), Florian Pohl, ed. (Marshall Cavendish 2010).

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  The Search for Shared Idioms: Contesting Views of Laiklik Before the Turkish Constitutional Court

  Seval Yildirim

  Published in Muslim Societies and the Challenge of Secularization: An Interdisciplinary Approach. Muslims in Global Societies Series, vol 1., Gabriele Marranci, ed. (Springer 2010).

  Laiklik, Turkish secularism, as it has been constructed, upheld and sustained by the Turkish state, and especially the Court, has become the mechanism through which all those who would like to see a shift in its definition and boundaries have been rendered the unacceptable and integrity-threatening other of Turkish society. I am interested in how the subjects of the law, as well as the interpreters and the sustainers of the law, perceive the Turkish concept of secularism, laiklik, and how these perceptions inform the cases before the Court.

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  Marine Protected Areas

  Kim Diana Connolly

  Published in Ocean and Coastal Law and Policy, Donald C. Baur, Tim Eichenberg & Michael Sutton, eds.

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  Regulation of Coastal Wetlands and Other Waters in the United States

  Kim Diana Connolly and Meredith Weinberg

  Published in Ocean and Coastal Law and Policy, Donald C. Baur, Tim Eichenberg & Michael Sutton, eds.

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  David Engel and "The Oven Bird's Song" (Edited Interview)

  David M. Engel

  Published as Chapter 8 in Conducting Law and Society Research: Reflections on Methods and Practice, Simon Halliday & Patrick Schmidt, eds.

  Understanding litigiousness involves many perspectives on how societies generate, shape, and process disputes. Whereas some may begin the study of disputing with the law and the formal institutions charged with implementing it, or what happens “in court,” a long tradition of Law and Society scholarship has emphasized the importance of seeing how cultural practices give life and meaning to the law. Though some of this scholarship has come from anthropology, much of it has been produced by scholars from other disciplinary backgrounds who have been attracted to ethnographic methods and the promise of understanding legality through the eyes of “regular” people – not lawyers or judges but the ordinary people who experience “law.”

  Like other scholars in this collection, such as Carol Greenhouse (Chapter 10), Sally Engle Merry (Chapter 12), and the team of Patty Ewick and Susan Silbey (Chapter 19), David Engel sought to explore legal consciousness as it existed in the narratives and lives of such people. As he describes it, the route of this intellectual approach stems from a personal journey, one that helped open his eyes to his own country. Unlike some ethnographic studies, however, he conducted his research without full-time immersion in the community he was studying. This interview explores some of the substitutions and strategies Engel made to seek his desired depth of understanding, and some of the challenges that inhere to the approach. Both in the substance of the article and in the research process itself, we find the temporal dimension – for the latter, the time that Engel spent in the field and in mulling over the data. The product of that gestation was a memorable article with a memorable title.

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  Discourses of Causation in Injury Cases: Exploring Thai and American Legal Cultures

  David M. Engel

  Published as Chapter 14 in Fault Lines: Tort Law as Cultural Practice, David M. Engel & Michael McCann, eds.

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  Introduction: Tort Law as Cultural Practice

  David M. Engel and Michael McCann

  Published as the introduction to Fault Lines: Tort Law as Cultural Practice, David M. Engel & Michael McCann, eds.

  Most scholars would agree that tort law is a cultural phenomenon and that its norms, institutions, and procedures both reflect and shape the broader culture of which it is a part. Yet relatively few studies have attempted to analyze tort law as a form of cultural practice or to address basic challenges regarding the methods or subject matter that are appropriate to such analyses. This essay introduces and summarizes a new volume of interdisciplinary, comparative, and historical studies of tort law in the United States as well as in the United Kingdom, Japan, Italy, India, Thailand, and elsewhere (the volume is entitled Fault Lines: Tort Law as Cultural Practice, Stanford University Press, 2009). The introductory essay contends that culture is not some 'thing' outside of tort law that may or may not influence legal behavior and deposit artifacts in the case law reporters. Rather, tort law and culture are inseparable dimensions of social practice in which risk, injury, liability, compensation, deterrence, and normative pronouncements about acceptable behavior are crucial features. Contributors to this volume demonstrate a variety of ways in which tort law’s cultural dimensions can be explored as they write about such topics as causation and duty, gender and race, the jury and the media, products liability and medical malpractice, insurance and the police, and tobacco and asbestos litigation. Their analyses extend far beyond the confines of the tort reform debate, which has until now set the agenda for much of the sociolegal research on tort law.

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  Contested Ground: The Story of Roe v. Wade and its Impact on American Society

  Lucinda M. Finley

  Published as Chapter 10 in Constitutional Law Stories, Second Edition, Michael C. Dorf, ed.

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  Self-Defense and the Psychotic Aggressor

  George P. Fletcher and Luis E. Chiesa

  Published in Criminal Law Conversations, Paul H. Robinson, Stephen Garvey & Kimberly Kessler Ferzan, eds.

  This brief essay, written for the Criminal Law Conversations Project, examines whether one can justifiably kill a faultless, insane assailant to save oneself or another from imminent and serious harm. Although scholars on both sides of the Atlantic agree that the person attacked should not be punished for defending herself from the psychotic aggressor, there is significant disagreement with regards to whether the defensive response should be considered justified or merely excused. Furthermore, amongst those who argue that the appropriate defense in such cases is a justification, there is disagreement regarding whether the specific ground of acquittal should be self-defense or necessity.

  These issues are explored in three parts. Part I discusses the facts that give rise to the problem of the psychotic aggressor and summarizes the basic questions posed by the case. Part II surveys and rejects five theories that would lead to acquitting the victim of the attack if he were tried for killing the psychotic aggressor. Part III advances an autonomy-based conception of self-defense that would justify the victim's use of force against the insane assailant and would allow third-party intervention in favor of the defending party. According to this theory, the roots of the right to use defensive force are not in the culpability of the aggressor, but in the wrongful invasion of the autonomy of the defender. Given that the psychotic assailant's attack amounts to an unjustifiable attack on the victim's autonomy, the victim's reciprocal obligation to show consideration for the psychotic aggressor's autonomy weakens. As a result, the law affords him a right to use whatever force is necessary to repel the unlawful attack. The fact that the psychotic actor would be acquitted on grounds of insanity if he were tried for his aggression is beside the point, for excuses such as insanity do not negate the wrongfulness of the act. Our right to be free from unlawful interferences with our person should not be compromised merely because the threat to our autonomy originates in the acts of an inculpable person. In such a confrontation on the street, the aggressor loses the protections that he would get during a trial, that is, the right to plead excuses such as insanity or duress.

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  Democracy without a Net? Separation of Powers and the Idea of Self-Sustaining Constitutional Constraints on Undemocratic Behavior

  James A. Gardner

  Published in Separation of Powers: U.S. Perspectives, D. Sujatha, ed.

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  Pro Bono, The Public Good, and The Legal Profession: An Introduction

  Robert Granfield and Lynn M. Mather

  Published in Private Lawyers and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession, Robert Granfield & Lynn Mather, eds.

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  Lemuel Shaw

  Alfred S. Konefsky

  Published in The Yale Biographical Dictionary of American Law, Roger K. Newman, ed., Yale University Press 2009.

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  Corporate Reorganizations

  Stuart G. Lazar

  Published as Chapter 43 in Mertens Law of Federal Income Taxation.

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  Abuse and Neglect: Historical and Cultural Perspectives

  Susan Vivian Mangold

  Published in The Child: An Encyclopedic Companion, Richard A. Shweder, ed.

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  Expanding the Parent-Child-State Triangle in Public Family Law: The Role of Private Providers

  Susan Vivian Mangold

  Published as Chapter 9 in What Is Right For the Children? The Competing Paradigms of Religion and Human Rights, Martha Albertson Fineman & Karen Worthington, eds.

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  Wife Beating: Ideology and Practice Under State Socialism in Hungary, Poland, and Romania

  Isabel Marcus

  Published in Gender Politics and Everyday Life In State Socialist Eastern and Central Europe, Shana Penn & Jill Massino, eds.

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  Lawyers and Solicitors Separated by A Common Legal System: Anti-Tobacco Litigation in the United States and Britain

  Lynn M. Mather

  Published as Chapter 11 in Fault Lines: Tort Law as Cultural Practice, David M. Engel & Michael McCann, eds.

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  Changing, Not Balancing, the Market: Economic Politics and "Social" Programs

  Martha T. McCluskey

  Published in Progressive Lawyering, Globalization, and Markets: Rethinking Ideology and Strategy, Claire Dalton, ed.

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  How Queer Theory Makes Neoliberalism Sexy

  Martha T. McCluskey

  Published in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero, eds.

  Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private power is better than value-laden state regulation.

  First, queer anti-statism risks joining neoliberalism in celebrating and naturalizing an imagined space of private bargaining free from state regulation. In rejecting liberal claims of state-protected rights, queer theory relies on a standard law-and-economics argument: all rights have costs. Rights to family leave, for example, may give only the illusion of state protection for workers with family responsibilities, because workers may "pay" for state-protected family leave with lower wages, fewer jobs, fewer promotions or more discrimination against women. However, a critical perspective should also recognize the converse: that all costs have rights. The private power that makes us skeptical of rights is not outside the state but produced by it.

  Second, queer anti-moralism joins neoliberalism in masking the moral judgments that shape whose claims to protection against injury get privileged as "good" acts of rational self-interest maximizing by freely choosing individuals and whose injury claims get disparaged as unproductive sentimental weakness that constrain individual freedom.

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  Razing the Citizen: Economic Inequality, Gender, and Marriage Tax Reform

  Martha T. McCluskey

  Published as Chapter 12 in Gender Equality: Dimensions of Women's Equal Citizenship, Linda C. McClain & Joanna L. Grossman, eds.

  This chapter links the failure of U.S. social citizenship ideals to a broader weakness in U.S. ideas citizenship. To better advance policies of economic equality, U.S. law and politics needs a stronger vision not just of economic equality, but of gender equality and of democracy in general. Feminist scholars have analyzed how ideas about gender help shape the common assumption that the costs of raising and sustaining capable, productive citizens are largely private family responsibilities. But ideas about gender also help to undermine egalitarian economic policy by subtly shaping a vision where civic virtue ironically includes the project of razing citizens: turning democratic citizens into pre-modern subordinates dependent on private power. I use the example of recent tax policy reforms focused on reducing the so-called marriage penalty to show how problematic ideas of gender, anti-citizenship, and economic inequality have become entangled and how these must be reconsidered together to promote a meaningful vision of equal citizenship.

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  Private Import Safety Regulation and Transnational New Governance

  Errol E. Meidinger

  Published as Chapter 12 in Import Safety: Regulatory Governance in the Global Economy, Cary Coglianese, Adam M. Finkel & David Zaring, eds.

  This paper examines the role of ‘private’ (non-governmental) regulatory programs in assuring the safety of imported products. Focusing particularly on food safety it argues that private regulatory institutions have great capacity to control safety hazards and to implement dynamic systems for detecting and correcting nascent risks. However, to establish the accountability and legitimacy relationships necessary for long-term effectiveness, private safety regulatory programs must devise new ways of incorporating and responding to the interests of developing country producers, laborers, consumers, and governments. Developed country regulators can aid this process by ‘orchestrating’ transnational governance processes to ensure that private regulatory programs collect and share information, maximize transparency and participation in their standard setting procedures, and experience incentives to deploy maximal care in implementation, monitoring, and enforcement.

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  From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies

  Tara J. Melish

  Published as Chapter 8 in The Sword and the Scales: The United States and International Courts and Tribunals, Cesare P.R. Romano, ed.

  It is frequently said that the United States has a paradoxical human rights policy. This Article takes a closer look at this vision from the perspective of U.S. engagement with international human rights treaty bodies, the quasi-adjudicatory expert committees or commissions that exercise supervisory jurisdiction over the U.S. human rights record. Contrary to popular perception that the U.S. thumbs its nose at these bodies, the U.S. in fact engages quite actively with their human rights procedures.

  To untangle the associated issues, the Article proceeds in five parts. Part I begins by reviewing the current legal framework that structures U.S. human rights treaty body engagements at the national and international levels. Part II then examines the specific ways the U.S. in fact engages with the three principal supervisory competences exercised by UN, OAS, and ILO treaty body systems: periodic reporting, quasi-adjudication, and promotional activities. Part III considers the countervailing push-pull pressures that influence and shape U.S. engagement policy at the foreign-policy and domestic-policy levels, respectively, while Part IV identifies the three principal mediating techniques the U.S. employs to accommodate these competing pressures. These mediating techniques, which draw heavily, if selectively, on the formalized rules of international human rights law's subsidiarity principle allow the U.S. to pursue a framework policy toward treaty body engagement that at once permits active U.S. engagement with international procedures, appeases conservative critiques of such engagement (at both domestic and foreign-policy levels), and allows the U.S. to remain technically compliant with its externally-oriented treaty obligations.

  What it does not do, as currently pursued, is facilitate internal domestic reflection on the nation's treaty-based human rights commitments. Indeed, responsive to the dominant pressures exerted on U.S. policymakers from both within and without government (from institutionalists, realists, and insulationists), these mediating techniques draw on only half of subsidiary's blueprint. Part V discusses this conflict, the structural opportunities for addressing it, and the importance of giving the principle of subsidiarity its full and intended meaning in international human rights law. The piece concludes by looking at where U.S. policy can be expected to lead in coming years, as U.S. policymakers continue to chart a middle course through difficult and shifting pressures. This middle course is one that does not reject, but rather solidly embraces supervisory human rights treaty body processes, albeit under a vision of their jurisdiction as strictly subsidiary to domestic decision-making processes. The challenge for domestic advocates is to ensure that this subsidiarity principle is embraced in its full dimensionality, not only in its negative facets. An outline of how this might be institutionally pursued and structured in the United States, particularly through the establishment of an executive focal point on treaty implementation and a national human rights commission with a comprehensive monitoring mandate, is discussed in Part V.