Contributions to Books

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  Colombia: Recent History

  Jorge Luis Fabra-Zamora and Andrés Molina Ochoa

  Published in South America, Central America and the Caribbean 2023, Europa Publications, ed. and online at Europa World.

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  Preface

  Rebecca Redwood French

  Published in Buddhism and Comparative Constitutional Law, Tom Ginsburg & Benjamin Schonthal, eds.

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  Electoral Systems and Conceptions of Politics

  James A. Gardner

  Published as chapter 8 in Comparative Election Law (James A. Gardner, ed., Edward Elgar Publishing, 2022).

  Every democratic society must settle upon some method by which diversity of public opinion may be narrowed and then transformed into concrete, binding, politically legitimate decisions about what the polity should do. In representative democracies, a key step in that process is choosing an electoral system, an institution that plays a critical role in transforming diversity of opinion among the demos into unified, presumptively consensual official policy. Although human ingenuity has devised many possible methods by which a democratic polity can record and calculate public opinion through voting, in today’s world the salient decision tends to boil down to a choice among two families of electoral systems: winner-take-all (WTA) and proportional representation (PR). Today, among the world’s democracies, more than sixty use WTA for elections to at least one national governing institution, and more than forty use PR.

  It is tempting to think of electoral systems as little more than alternative methods for tabulating votes, as interchangeable as jam and marmalade, and thus a matter solely of personal taste. This is false in two ways. First, the seemingly trivial methodologies of recording and tabulating votes in WTA and PR systems rest upon profoundly different conceptual foundations encompassing distinct and incompatible beliefs about the nature of the good, the epistemology of the good, and the nature and function of political representation. Second, the choice between the two methodologies has significant consequences for how politics is practiced and experienced by members of the polity, both locally and nationally, and by their elected representatives. To choose between the two systems is thus to choose not merely between electoral methodologies, but between fundamentally distinct conceptions of politics itself.

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  El misterioso éxito de una democracia federal

  James A. Gardner

  Published in Decisión democrática y forma constitucional, Pablo Riberi & Pedro Salazar Ugarte, eds.

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  Introduction: Election Law—Universal or Particular?

  James A. Gardner

  Published as the introduction to Comparative Election Law (James A. Gardner, ed., Edward Elgar Publishing, 2022).

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  Principios de la libertad de expresión en los Estados Unidos

  James A. Gardner

  Published in Una perspectiva global del Derecho penal: Libro homenaje al profesor Dr. Joan J. Queralt Jiménez, Dulce María Santana Vega, Silvia Fernández Bautista, Sergi Cardenal Montraveta, David I. Carpio Briz & Carlos Castellvi Monserrat, eds.

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  When and Why Do Lawyer Organisations Seek to Influence Law?

  Lynn M. Mather and Leslie C. Levin

  Published as Chapter 15 in Lawyers in 21st-Century Societies: Volume 2: Comparisons and Theories, Richard L Abel, Hilary Sommerlad, Ole Hammerslev & Ulrike Schultz, eds.

  Lawyers seek to influence law through advocacy for individual clients, but also through collective efforts. Such efforts come from informal networks of politically engaged “cause” lawyers and also from formal lawyers’ organizations such as bar associations. This article explores when and why lawyer organizations attempt to influence law, primarily by considering the activities of lawyers’ professional organizations. The article closely examines lawyers’ organizational efforts in seven countries – Brazil, China, Israel, Japan, Kyrgyzstan, Libya, and the United States – and then briefly compares those results to lawmaking attempts in forty other countries, using data from national reports of the legal professions in Volume I of this series. Lawyers’ collective activities to influence law range along a continuum from the most self-interested (efforts to benefit the legal profession or the lawyer organization itself), to those efforts benefitting clients, or courts and the administration of justice, finally to broader efforts to advance human rights or address issues in civil society. The article concludes by identifying key factors that influence the ability of lawyers’ organizations to act on legal issues and also those factors that appear to affect why the organizations do so. The latter discussion draws especially on theories of market control and political liberalism, finding some support for each.

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  The Fraud of John Locke: Subnational Challenges to Democratic Theory

  Makau wa Mutua

  Published as chapter 6 in Comparative Election Law (James A. Gardner, ed., Edward Elgar Publishing, 2022).

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  Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor

  John Henry Schlegel

  Published as Chapter 18 in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries, Shyam Balganesh, Ted Sichelman & Henry Smith, eds.

  Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the years after completion of the job of reordering of the corpus juris in the wake of the demise of the writ system. A Harvard Law School educated westerner who ambivalently wanted to move east from his post at the then decidedly non-elite Stanford Law School, Hohfeld eventually made it to the then decidedly non-elite Yale Law School. His relatively brief career sheds light on both how in the years before World War I legal academics built a professional identity and how they navigated the nascent law school network. It also raises a question of how an analytical legal scholar might have responded to later developments in jurisprudence.

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  Introduction: The Meanings of 'Objectivity'

  Gonzalo Villa-Rosas and Jorge Luis Fabra-Zamora

  Published as the introduction to Objectivity in Jurisprudence, Legal Interpretation and Practical Reasoning, Gonzalo Villa-Rosas & Jorge Luis Fabra-Zamora, eds.

  In this chapter, the editors propose a new account for answering the question about the meaning of 'objectivity' based on the following steps. First, they determine the normative function of the adjective 'objective'. Second, they criticise those positions that argue that a negative sense of 'objectivity' is sufficient to define it. Third, they explain the reasons why reductivist attempts to define 'objectivity' are untenable. Fourth, they rule out an alternative account of the definition of 'objectivity' inspired by Wittgenstein's notion of family resemblance. Finally, in response to the defects of all these views, they argue for a new account of the definition of 'objectivity' premised on the Aristotelian notion of core-dependent homonymous. This conception allows them to show the fabric that illuminates the various senses of objectivity discussed in the volume, whose content is presented in the second part of this chapter. In the final section of this chapter, the editors sketch some possible lines of research that stem from the thoughts advanced in this collection.

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  Judith Shklar’s Critique of Legalism

  Seyla Benhabib and Paul Linden-Retek

  Published as Chapter 16 in The Cambridge Companion to the Rule of Law, Jens Meierhenrich & Martin Loughlin, eds.

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  Animals

  Irus Braverman

  Published as Chapter 12 in The Routledge Handbook of Law and Society, Mariana Valverde, Kamari M. Clarke, Eve Darian Smith & Prabha Kotiswaran, eds.

  This chapter describes the traditional approaches in animal law of animal welfare and animal rights. Animal rights, as an approach, developed as a critique of the older animal welfare, anti-cruelty approach. Tom Regan, an influential animal rights writer, explained the difference between the welfare and the rights approaches this way: whereas welfarists advocate for larger animal cages, animal rights proponents push for dismantling the cages altogether. Beyond animal welfare and animal rights, new perspectives on non-humans and the law are emerging that are influenced by ecological approaches. Unlike the more traditional western legal systems, such approaches do not draw sharp lines that separate humans and their rights from the rest of nature. Indeed, environmentalists have long-criticized the animal rights movement's exclusive focus on the rights of individual animals who belong to certain species. The evolution of socio-legal thinking on animals and nature has raised fundamental questions about law itself, by exposing the anthropocentric and individualist bias of traditional legal doctrines.

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  Der Jüdische Nationalfonds, Bäume und Öko-Zionismus^TM [The Jewish National Fund, Trees, and Eco-Zionism^TM]

  Irus Braverman

  Published in Jüdischer Almanach Natur, Gisela Dachs, ed.

  German Abstract:Bäume gehören ins Reich der Natur, das kaum je mit den Menschen und ihren Machtspielen in Verbindung gebracht wird. Der vorliegende Beitrag erörtert in Kürze die Entwicklung, in deren Verlauf eine natürliche Einheit — hierdie Kiefer — schließlich die zionistische Ideologie verkörperte und beförderte. Für Israel ist die Kiefer fast gleichbedeutend mit dem Jüdischen Nationalfonds (JNF). Nach seiner Gründung aufdem Fünften Zionistenkongress 1901 in Basel übernahm der JNF eine doppelte Aufgabe: Zurn einen erwarb und verteilte er als zentrale Agentur Boden für das jüdische Volk, zum anderen wurde er später vom Staat Israel offiziell mit der Aufforstung des Landes betraut. Trotz wachsender Kritik an JNF-Praktiken, die manche für diskriminierend oder gar rassistisch halten, besteht die Verquickung beider Aufgaben bis heute.

  Im 20. Jahrhundert hat der JNF in lsrael/Palästina über 240 Millionen Bäume auf einer Flache von 920 000 Dunam (92 000 Hektar) gepflanzt. Statt diesen massiven Aufforstungseinsatz zu zentralisieren, nutzte der JNF ihn dazu, Netzwerke aufzubauen und langfristig auf Verwurzelung und Entwurzelung in lsrael/Palästina hinzuwirken. Diese Grundkonzeption machte die ökologische Mission des JNF höchst attraktiv for Juden in aller Welt. Bäume — und speziell Kiefern —, die als natürlich und friedlich ernpfunden wurden, dienten als Waffen zur Enteignung und Vertreibung von Palästinensern, um die jüdische Vorherrschaft über die Landschaft zu sichern.

  English Abstract:Trees belong to the realm of nature, which is typically perceived as indifferent to humans and their power dynamics. This contribution briefly discusses the process through which a natural entity—here the pine tree—has come to embody and promote the Zionist ideology. In the Israeli context, the pine tree has become almost synonymous with the Jewish National Fund (JNF). Established by the Fifth Zionist Congress in Basel in 1901, the JNF has since then been engaged in a double mission: it has served as Israel’s central agency for acquiring and disposing lands for the benefit of the Jewish people and also as Israel’s official afforestation body. Despite the growing criticism toward what some say are discriminatory and even racist practices on the part of the JNF, the interdependency between the two parts of JNF’s mission have not weakened over the years.

  In the course of the twentieth century, the JNF planted over 240 million trees in Israel/Palestine over an area of 920,000 dunam (92,000 hectare). Instead of centralizing this massive tree planting operation, the JNF used it to build networks and a long-term commitment to taking root, and uprooting, in Israel/Palestine. This ground-up organizing accounts for the spectacular appeal of JNF’s ecological mission to Jewish people around the globe. Portrayed as natural and benign, trees—and pines in particular—have been used as weapons for the dispossession and elimination of Palestinians, enabling the Jewish domination of the landscape.

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  Legal Consciousness

  Lynette J. Chua and David M. Engel

  Publshed as Chapter 38 in The Routledge Handbook of Law and Society, Mariana Valverde, Kamari M. Clarke, Eve Darian Smith & Prabha Kotiswaran, eds.

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  Evgeny Pashukanis’ Commodity-Form Theory of Law

  Matthew Dimick

  Published as Chapter 8 in Research Handbook on Law and Marxism, Paul O’Connell & Umut Özsu, eds.

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  Introduction

  Jorge Luis Fabra-Zamora, Andrés Molina-Ochoa, and Nancy C. Doubleday

  Published as the introduction to The Colombian Peace Agreement: A Multidisciplinary Analysis, Jorge Fabra-Zamora, Andrés Molina-Ochoa & Nancy C. Doubleday, eds.

  This book is the first systematic, interdisciplinary examination of the peace agreement signed between the Colombian Government and the Revolutionary Armed Forces of Colombia to end one of the largest and most violent conflicts in the Western Hemisphere. It discusses the achievements, failures, and challenges of this innovative peace agreement and its implications for Colombia’s future. Contributors include negotiators of the Agreement, judges of the Special Jurisdiction for Peace, representatives of the civil society, and leading academic experts in peace studies, human rights, international law, criminal law, transitional justice, political science, and philosophy. Based on the premise that peace is a form of transferable social knowledge, and therefore necessitates transformative social learning, the volume also discusses what other countries can learn from the Colombian experience.

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  Introduction

  Jorge Luis Fabra-Zamora and Gonzalo Villa Rosas

  Published as the introduction to Conceptual Jurisprudence: Methodological Issues, Classical Questions, and New Approaches, Jorge Luis Fabra-Zamora & Gonzalo Villa Rosas, eds.

  The introduction sets the stage by explaining the goals of conceptual jurisprudence and providing a summary of the essays.

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  Subnational Constitutionalism in the United States: Powerful states in a powerful federation

  James A. Gardner

  Published as Chapter 19 in Routledge Handbook of Subnational Constitutions and Constitutionalism, Patricia Popelier, Nicholas Aroney & Giacomo Delledonne, eds.

  The United States has an extremely robust network of subnational constitutions. It is one of the few federations in the world in which subnational entities are understood to be fully competent polities with virtually complete constituent powers of self-organization and self-authorization. The authority to adopt a subnational constitution is consequently understood to be an incident of subnational sovereignty, a concept in turn derived from a conception of the basic federal order itself as highly decentralized.

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  Winning Strategy or Own Goal? Reflections on the United States Exiting the Trans-Pacific Partnership

  Meredith Kolsky Lewis

  Published as Chapter 15 in Rethinking, Repackaging, and Rescuing World Trade Law in the Post-Pandemic Era, Amrita Bahri, Daria Boklan & Weihuan Zhou, eds.

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  Critical Legal Power for Twenty-First Century Change

  Martha T. McCluskey

  Published in Voices on Law and Activism: Addressing The Work of Adam Gearey, Maria Grahn-Farley, ed.

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  Law and Economics Against Feminism

  Martha T. McCluskey

  Published as Chapter 17 in The Oxford Handbook of Feminism and Law in the United States, Deborah Brake, Martha Chamallas & Verna Williams, eds.

  This article analyzes feminism in legal theory in relation to the rise of “law and economics” during the late twentieth century as a methodology that generated academic credibility for anti-egalitarian ideology and policy. Law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best governed by efficiency insulated from contested morality and politics. This division naturalizes a gendered baseline that generally makes feminist reforms appear costly and unfair. Finally, the article explores how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.

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  Reparations for Slavery: A Productive Strategy?

  Makau wa Mutua

  Published as Chapter 1 in Time for Reparations: A Global Perspective, Jacqueline Bhabha, Margareta Matache & Caroline Elkins, eds.

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  Transparency in the Insurance Contract Law in the United States

  Aviva Abramovsky and Peter Kochenburger

  Published in Transparency in Insurance Contract Law, Pierpaolo Marano & Kyriaki Noussia, eds.

  In the United States, a mix of government regulation and common law decisions govern insurance contracts, and “transparency” in this context does not have a fixed meaning. There are not the sharp distinctions between public and private law that exist in many other jurisdictions (particularly in civil law countries). This is especially true in insurance, where laws regulating insurance contracts are typically a mix of specific government interaction—statutes, regulations, and regulatory notices and bulletins—and the common (“judge-made”) law. For these reasons, transparency standards for insurance agreements are best understood as including both access to essential information about the contract—the cost, forms, terms, endorsements, etc.—and disclosure and other regulatory requirements that support actual knowledge by the parties entering into the insurance agreement and consumer certainty of what coverage is provided.

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  Centralization of the Academic Law Library: Is It Right for Your Institution?

  Elizabeth G. Adelman

  Published in Academic Law Libraries Within the Changing Landscape of Legal Education: A Primer for Deans and Provosts, Michelle M. Wu, Scott B. Pagel & Joan S. Howland, eds.

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  Oculta a Plena Vista: La Geografía Jurídica Desde Una Perspectiva Visual

  Irus Braverman

  Published in Derecho y geografía: espacio, poder y sistema jurídico, Richard T. Ford, Irus Braverman, Mariana Valverde & Maria Victoria Castro Cristancho, eds.