Contributions to Books

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  Attorneys' Fees and Costs

  Francis O. Scarpulla, Christine P. Bartholomew, Qianwei Fu, and Eric W. Buetzow

  Published as Chapter 15 in California State Antitrust and Unfair Competition Law: The State Bar of California Antitrust and Unfair Competition Law Section.

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  Academics

  John Henry Schlegel

  Published in Oxford International Encyclopedia of Legal History, Stanley N. Katz, ed.

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  Conflating the Good with the Public Good: An Essay

  John Henry Schlegel

  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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  Suffrage and the Terms of Labor

  Robert J. Steinfeld

  Published as Chapter 9 in Human Capital and Institutions: A Long Run View, David Eltis, Frank D. Lewis & Kenneth L. Sokoloff, eds.

  Great books often harbor deep tensions, which are one source of their enduring power. Time on the Cross by Robert Fogel and Stanley Engerman is a good example (Fogel and Engerman 1974). On the one hand, Time on the Cross argued that the economic science of Cliometrics was indispensable for a proper understanding of the past. Human beings have always been primarily motivated by the desire for gain, and to understand their behavior it is essential to reconstruct the economic contexts in which they acted. Somewhat surprisingly, therefore, in light of the rigorous quantitative economic methodology the book adopted, the enormous labors the authors devoted to counting, measuring, and precisely assessing the profitability of slavery were all devoted, in the end, to demonstrating that economic factors did not explain why slavery had disappeared in the United States. Slavery had not perished because it was unprofitable. It had disappeared as the result of war and because the nation had come to a political (and moral) decision to end it, despite its continuing profitability.

  And so ironically one of the principal messages of Time on the Cross turned out to be that economic factors could not always be invoked to explain why one set of economic practices had succeeded and another failed. Non-economic political and moral factors and the legal rules they generated often played determinative roles in the fate of economic institutions, including the fate of labor systems

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  Propiedad sagrada: buscando valor en los escombros del 11-S

  Mateo Taussig-Rubbo

  Published as Chapter 3 in Derecho Y Propiedad, Seminario en Latinoamérica de Teoría Constitucional y Política, ed.

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  Sacrifice and Sovereignty

  Mateo Taussig-Rubbo

  Published as Chapter 4 in States of Violence: War, Capital Punishment, and Letting Die, Austin Sarat & Jennifer L. Cuthbert, eds.

  This Chapter examines a complement to the concept of the state’s monopoly of legitimate violence, what I call a ‘monopoly of sacrifice.’ It describes some of the difficulties the United States government has confronted in authoritatively designating which and whose losses and deaths in the name of the nation are considered transcendent or sacred. Through detailed case studies, it describes a state that uses legal form and policy to construe certain deaths as sacrificial, and others as banal, and then explores some of the challenges these designations encounter as non-state actors - Iraqi insurgents, private military contractors, American mothers of soldiers, and detainees - purport to have direct access to sacrificial action and sovereign meanings. Each of these cases illustrates not simply that an ex ante governmental designation is vulnerable to challenge, but the particular role of sacrifice in initiating such a challenge.

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  Checkpoint Gazes

  Irus Braverman

  Published in Acts of Citizenship, Engin F. Isin & Greg M. Nielsen, eds.

  The checkpoint in the occupied Palestinian territories (OPT) provides a unique space for examining how technologies of gazing are utilized by military and civil actors alike. It also exposes the power of these gazes both as acts of security and as subversive acts of citizenship. Originally, the checkpoints in the OPT were constituted as binary places where military officials observed the occupied Palestinian population. Through introducing a counter-gaze, the women of the organization Machsom Watch (MW) have attempted to disrupt this binary constellation of 'powerful versus powerless'. Herein, I consider this counter-gaze as an act of citizenship, especially in that it transforms the political, social, and ethical consciousness of its actors, and perhaps also that of the other actors who operate in the space of the checkpoint. While the gaze of security and calculability looks to empty its object of agency, what happens when MW women gaze back at security, exposing an otherwise clandestine aspect of its existence as such? For example, when MW mothers and sisters counteract the panoptic gaze of the soldiers by seeing them as sons and brothers, does this counter-gaze rupture the habitus of security enacted in this place, or is it further absorbed into the contagion of power that these women seek to disrupt? One way or the other, the women of MW constitute a third party in the checkpoint scene, rather than the usual two parties - soldiers and Palestinians - that confront each other in this space. But what happens when other actors intervene, this time with a different gaze and agenda? How does the dynamic between these various actors create and subvert the meaning of the gaze as an act of citizenship? The following paragraphs briefly explore these questions. Ultimately, I suggest that the interactions between the various gazes produced in and by the checkpoints are not only important indicators but are also constitutive of the changing relationships between the actors that operate in this place, producing an increasingly complex set of hybrid gazes that constantly shift the power dynamics enacted in the checkpoint.

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  Mujeres Maltratadas y Legítima Defensa: La Experiencia Anglosajona

  Luis E. Chiesa

  Published in Ni el aire que respiras: pensamiento científico ante la violencia de género, Ana María Ruiz-Tagle & Rosario Valpuesta Fernández, eds.

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  Interdependence and Victim Compensation: Views from Buddhist Tibet and Post-9/11 United States

  Rebecca Redwood French

  Published as Chapter 15 in Faith and Law: How Religious Traditions From Calvinism to Islam View American Law, Robert F. Cochran, Jr., ed.

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  The Legal Profession: From the Revolution to the Civil War

  Alfred S. Konefsky

  Published as Chapter 3 in The Cambridge History of Law in America, Volume II, The Long Nineteenth Century (1789–1920), Michael Grossberg & Christopher Tomlins, eds.

  The American legal profession matured and came to prominence during the century prior to the Civil War. Before the Revolution, across some 150 years, lawyers in different colonies underwent different experiences at different times. By the beginning of the eighteenth century, more lawyers were entering professional life. After the revolution and the defection by the Tory lawyers, the remaining quickly burnished their images in the glow of republican ideals while grasping new market opportunities. For most of the eighteenth and nineteenth centuries, the overwhelming majority of American lawyers were trained by other lawyers. Reading law was thought of as a practical education, where acquiring the principles of the mysterious science was left to chance. However, over the course of the nineteenth century, lawyers, in conjunction with courts, gradually lost whatever control they had over admission standards and practices. The realities of legal practice were one of the factors that determined the place of lawyers in American society.

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  The Prisoners' Dilemma and FTAs: Applying Game Theory to Trade Liberalization Strategy

  Meredith Kolsky Lewis

  Published in Challenges to Multilateral Trade The Impact of Bilateral, Preferential and Regional Agreements, Ross P. Buckley, Vai Io Lo & Laurence Boulle, eds.

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  The 2000 Presidential Election Controversy

  Manoj Mate and Matthew Wright

  Published as Chapter 14 in Public Opinion and Constitutional Controversy, Nathaniel Persily, Jack Citrin & Patrick J. Egan, eds. (2008).

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  Bringing the Lawyers Back In

  Lynn M. Mather

  Published as Chapter 4 in Exploring Judicial Politics, Mark C. Miller, ed.

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  Law & Society

  Lynn M. Mather

  Published as Chapter 39 in The Oxford Handbook of Law and Politics, Keith E. Whittington, R. Daniel Keleman & George A. Caldera, eds.

  The study of law and society rests on the belief that legal rules and decisions must be understood in context. Law is not autonomous, standing outside of the social world, but is deeply embedded within society. While political scientists recognize the fundamentally political nature of law, the law and society perspective takes this assumption several steps further by pointing to ways in which law is socially and historically constructed, how law both reflects and impacts culture, and how inequalities are reinforced through differential access to, and competence with, legal procedures and institutions. This article discusses the key characteristics of a law and society perspective, some of the major research contributions of this field, and recent developments in law and society that hold particular promise for scholars of law and politics today. In particular, it examines three broad areas of law and society scholarship: disputing, decision making, and legal ideology and consciousness.

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  Law and Religion in Colonial America

  Mark McGarvie and Elizabeth B. Mensch

  Published in Cambridge History of American Law, Volume 1: Early America (1580-1815), Michael Grossberg & Christopher Tomlins, eds.

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  Multi-Interest Self-Governance through Global Product Certification Programs

  Errol E. Meidinger

  Published as Chapter 9 in Responsible Business: Self-Governance and Law in Transnational Economic Transactions, Olaf Dilling, Martin Herberg & Gerd Winter, eds.

  This paper describes emerging new governance systems centered on programs that seek to 'certify' products as having been produced in environmentally or socially appropriate ways. These programs typically promulgate their own standards, which are often stricter than state standards, and implement them through distinctive inspection and monitoring institutions. Conventionally labeled as 'self-governance' because they are organized around global product chains, the programs also incorporate a growing variety of non-economic interests from around the world in policy making and implementation. The paper focuses on forestry, but also discusses organic agriculture, apparel, and fisheries certification, describing the structure and dynamics of these programs as well as their relationships to state legal regimes. It suggests, among other things, that the programs have had surprisingly large effects on operational practices, that they may be evolving distinctive new accountability systems, and that they rely particularly heavily on 'logics of appropriateness' in seeking to establish their legitimacy.

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  Property Law for Development Policy and Institutional Theory: Problems of Structure, Choice, and Change

  Errol E. Meidinger

  Published in The Mystery of Capital and the New Philosophy of Social Reality, Barry Smith, David M. Mark & Isaac Ehrlich, eds.

  This paper brings the institutional and ontological assumptions of development-by-incorporation theorists such Hernando De Soto into dialogue with modern property scholarship. The central argument of the incorporationists is that state-based legal systems should simply recognize and incorporate the informal property rights of urban squatters and rural villagers, thereby creating the necessary institutional conditions for successful economic development in those communities. While not directly addressing the consequentialist side of the argument, this paper argues that our knowledge of modern property systems poses several significant challenges to this prescription. The most significant of these are that modern property systems have often resisted incorporating informal property rights, and indeed often suppressed them, that they typically involve a great deal more indeterminacy than institutional theorists assume, that the very boundaries of modern property systems seem to be shifting beyond the nation state system, that incorporation decisions will necessarily involve significant normative choices, and that some traditional systems may simply be inconsistent with the institutional ontology of modern economic institutions.

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  Hacia La Protección Efectiva de los Derechos Sociales: La Jurisprudencia de la Corte Interamericana de Derechos Humanos

  Tara J. Melish

  Published in Los Derechos Económicos, Sociales Y Culturales En Las Americas.

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  Augustine and Law

  Elizabeth B. Mensch

  Published as Chapter 1 in Faith and Law: How Religious Traditions from Calvinism to Islam, Robert F. Cochran, Jr., ed.

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  Human Rights NGOS in East Africa: Defining the Challenges

  Makau wa Mutua

  Published as Chapter 1 in Human Rights NGOS in East Africa: Political and Normative Tensions, Makau Mutua, ed.

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  Law and Economic Change During the Short Twentieth Century

  John Henry Schlegel

  Published as Chapter 16 in Cambridge History of Law in America, Volume 3: The Twentieth Century and After (1920–), Michael Grossberg & Christopher Tomlins, eds.

  The brief recounting of the American economy in the twenties and thirties raises obvious questions about law and economic change. Economic change is the shift from one enacted, in both senses, understanding of economic life to another, in the case of the short twentieth century, from an associationalist economy to an impatient economy. This chapter explicates this economic change, and interrogates it in order to understand the role of law in its occurrence. Despite the essential indeterminacy of law's reaction to smaller scale economic change, a few underlying attitudes can be teased out, one can identify law's general attitude toward change, its attitude toward technological as opposed to cost-driven change, and its attitude toward system-wide change. First, with respect to law's general attitude toward smaller scale economic change, it is important to remember that there are three possible answers that law might regularly give when economic actors seek its aid stonewall change, support it indiscriminately, or slow it down somewhat.

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  Domestic Violence and Firearms

  Suzanne E. Tomkins

  Published as Chapter 10 in Domestic Violence, Thomas F. Liotti, ed.

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  The Meaning of Killing

  Guyora Binder

  Published as Chapter 4 in Modern Histories of Crime and Punishment, Markus D. Dubber & Lindsay Farmer, eds.

  The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the prosecution must prove she committed an act causing the death of another, accompanied by a culpable mental state. The law conceived homicide very differently in seventeenth-and eighteenth-century England: a killing required an act culturally recognizable as a violent assault. By “rethinking” killing as a kind of act rather than a result, this paper explains the transformation of homicide from unexcused killing to culpable causing. It examines a cross-section of the homicide cases reported in the Proceedings of the Old Bailey between 1674 and 1834. The study’s cases suggest that the categories of murder, manslaughter, and accidental death were distinguished primarily on the basis of differences in conduct rather than mental states, and that intent to kill was almost completely peripheral in seventeenth and eighteenth century English homicide law.

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  Any Hope for Happily Ever After? Reflections on Rapanos and the Future of the Clean Water Act Section 404 Program

  Kim Diana Connolly

  Published in The Supreme Court and the Clean Water Act: Five Essays, L. Kinvin Wroth, ed.

  This essay takes an initial fanciful look at the history of Clean Water Act Section 404 jurisdiction, then following a brief overview of the 2006 Rapanos v. United States decision and events leading up to it, provides an overview of the United States Army Corps of Engineers permitting process. The concluding section attempts to address the outstanding question presented by this essay: can there ever be a “happily ever after" when it comes to protections for wetlands and other waters following recent developments in the 404 program.

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  Globalization and Law in Everyday Life

  David M. Engel

  Published in Encyclopedia of Law and Society: American and Global Perspectives, David S. Clark, ed.