Contributions to Books

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  What is Tort Reform Really About?

  Lucinda M. Finley

  Published in Materials on Tort Reform, Andrew F. Popper, ed.

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  Wisconsin v. Yoder: An Anthropologist Shapes a Supreme Court Decision

  Rebecca Redwood French

  Published as Chapter 3 in Law and Religion: Cases in Context, Leslie C. Griffin, ed.

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  Ethnography in Ordinary Case Law

  Rebecca Redwood French

  Published as Chapter 5 in Law and Anthropology: Current Legal Issues Volume 12, Michael Freeman & David Napier, eds.

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  Dual Enforcement of Constitutional Norms

  James A. Gardner

  Published as Chapter 1 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.

  Not so very long ago, the story of American constitutional law was easy to understand and even easier to relate. Constitutional law was a story written by two actors: the framers of the U.S. Constitution and the U.S. Supreme Court. The U.S. Constitution provided the content of constitutional law and a Supreme Court told us what it meant. Today, this master narrative has begun to unravel in favor of new one that treats constitutional law as both the object and the venue of a plural and often remarkably inclusive ongoing conversation about the norms by which we live and govern ourselves. The U.S. Supreme Court remains, to be sure, an important and in many ways preeminent voice in the formal pronunciation of American constitutional law. But increasingly the Court is understood to share the stage with a plurality of other voices that speak together - sometimes cooperatively, sometimes competitively - in a collective enterprise of generating, elaborating, and ultimately applying and enforcing constitutional norms.

  This paper, which comprises the introductory chapter of Dual Enforcement of Constitutional Norms: New Frontiers of State Constitutional Law (James A. Gardner and Jim Rossi, eds., Oxford University Press, forthcoming 2010), lays out the book’s principal thesis. Rejecting both the old dual federalism and the newer judicial federalism models, the contributors to this volume understand the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters of Dual Enforcement thus present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance, and our aim for the book is to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.

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  Why Federalism and Constitutional Positivism Don't Mix

  James A. Gardner

  Published as Chapter 4 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.

  This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. However, states in a federal system like ours are far from the kind of autonomous sovereigns contemplated by prevailing theories of national constitutional interpretation. Indeed, a state constitution is the product of processes that transcend the state, and in which both the state and national polities participate. As a result, the interpretation of state constitutions inevitably will require at least some resort to national norms and sources of constitutional meaning.

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  Safety Standards and Indigenous Products: What Role for Traditional Knowledge?

  Meredith Kolsky Lewis

  Published as Chapter 8 in International Economic Law and National Autonomy, Meredith Kolsky Lewis & Susy Frankel, eds.

  Indigenous communities have used native plants as foods and for medicinal purposes for thousands of years. Some of these indigenous products have proven sufficiently popular that individuals outside the indigenous community have sought to consume, purchase and market them. In certain instances, new products have been derived from the indigenous plant and sold outside the indigenous community. In other cases, the indigenous product has been exported in its original form, but utilized in non-traditional ways in the export market. In recent years, various WTO Members have imposed bans and other restrictions on the importation of certain indigenous products on the basis of health and safety concerns. These restrictions tend to be blanket bans on the products as a whole, thus curtailing both the ability to consume indigenous products according to their traditional uses, as well as the adapted versions of such products.

  This chapter uses the example of the recent bans on kava from Pacific Island countries as context to argue that the safety of indigenous products with long histories of traditional use should be evaluated on their own merits. They should not be deemed the equivalent of new products with new uses that have been adapted from the indigenous plant, nor should their safety be assessed in combination with such new products. Bans on indigenous products may well be overbroad if they do not differentiate between traditional (quite possibly safe) uses and new (perhaps not-so-safe) uses.

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  Mills v. Board of Education of Anne Arundel County, and Commonwealth of Pennsylvania v. Brown

  Athena D. Mutua

  Published in Encyclopedia of African American Education, Kofi Lomotey, ed.

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  Law, Critical Race Theory, and Related Scholarship

  Athena D. Mutua

  Published in The Sage Handbook of Race and Ethnic Studies, Patricia Hill Collins & John Solomos, eds.

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  Human Rights: Critiques

  Makau wa Mutua

  Published in The Oxford International Encyclopedia of Peace, Nigel J. Young, ed.

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  On a Possible Instance of the Transmigration of Souls: From American Regal Legalism to American Legal Realism and Back Again

  John Henry Schlegel

  Published in Globalization and the U.S. Law School: Comparative and Cultural Perspectives 1906-2006, Stephen C. Hicks & Kjell Å Modéer, eds.

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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.