Contributions to Books

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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.

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  Robotic Life in the Deep Sea: Deploying Killer (and Other) Robots to Make Live

  Irus Braverman

  Published as Chapter 7 in Blue Legalities: The Law and Life of the Sea, Irus Braverman & Elizabeth R. Johnson, eds.

  Drawing on in-depth interviews with marine biologists and engineers, this chapter explores the relationship between human scientists, nonhuman animals (crown-of-thorns starfish and deep sea and tropical corals), and robotic entities (COTSbots, ROVs, AUVs, and OceanOne humanoids). The chapter considers how the drive to ecological management is articulated through, and confined by, national and international law. It asks whether it matters—physically, socially, and legally—if the acts of making live and making die are carried out by machines rather than by humans and whether it matters that these acts target nonhuman animals. Throughout, the chapter examines how the mechanization of knowledge and management in the deep sea has displaced humans, thereby creating the conditions for a kind of biopolitical gaze that extends not only beyond the human but also beyond specific management sites to encompass the entire ocean. At the same time, technology also enables the virtual reinsertion of the human into a scene that was once considered inaccessible to us. Technological developments thus both enable and reinforce a very particular vision of planetary management. The oceans are at the forefront of this planetary vision, and their transition toward management by robots signals a much broader transition toward robotic management in planetary government writ large.

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  Blue Legalities: Untangling Ocean Laws in the Anthropocene

  Irus Braverman and Elizabeth R. Johnson

  Published as the introduction to Blue Legalities: The Law and Life of the Sea, Irus Braverman & Elizabeth R. Johnson, eds.

  The ocean and its inhabitants sketch and stretch our understandings of law in unexpected ways. Inspired by the blue turn in the social sciences and humanities, Blue Legalities explores how regulatory frameworks and governmental infrastructures are made, reworked, and contested in the oceans. Its interdisciplinary contributors analyze topics that range from militarization and Maori cosmologies to island building in the South China Sea and underwater robotics. Throughout, Blue Legalities illuminates the vast and unusual challenges associated with regulating the turbulent materialities and lives of the sea. Offering much more than an analysis of legal frameworks, the chapters in this volume show how the more-than-human ocean is central to the construction of terrestrial institutions and modes of governance. By thinking with the more-than-human ocean, Blue Legalities questions what we think we know—and what we don’t know—about oceans, our earthly planet, and ourselves.

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  Introduction

  Jorge Luis Fabra-Zamora

  Published in Jurisprudence in a Globalized World, Jorge Luis Fabra-Zamora, ed.

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  Los tres modelos para la indemnización a las víctimas del conflicto armado interno en Colombia [Three Models of Reparations for Victims of the Internal Armed Conflict in Colombian Law]

  Jorge Luis Fabra-Zamora

  Published in Reparación en los sistemas transicionales en Colombia: Los retos de un concepto en construcción, Paola Sánchez Cepeda, Gustavo Gallón Giraldo & Julián González Escallón, eds.

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  Commentary on Emerson v. Magendantz

  Lucinda M. Finley

  Published as Chapter 13 of Feminist Judgments: Rewritten Tort Opinions, Martha Chamallas & Lucinda M. Finley, eds. (Cambridge University Press 2020). Emerson v. Magendantz assesses how to measure harm when people get pregnant after a negligently performed sterilization, or have disabled children after genetic counseling or prenatal testing misdiagnosed the risk. The court permitted parents to recover child-rearing costs only for disabled children, reasoning that the emotional benefits of a healthy child invariably outweigh its economic burdens. Critiquing this reasoning as a double insult to the disabled and to the importance of reproductive autonomy, the feminist rewritten opinion uses the normalcy and centrality of fertility control to women’s experience to conclude that traditional tort principles of full damages for all foreseeable harm includes child-rearing costs for healthy and disabled children alike. The accompanying commentary presents the varying judicial measurements of damages in “wrongful birth” cases, and highlights how courts have undervalued the importance of reproductive autonomy while overlooking the disparate impact of even wanted healthy children on women’s economic and educational advancement.

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  Introduction

  Lucinda M. Finley and Martha Chamallas

  Published as Chapter 1 of Feminist Judgments: Rewritten Tort Opinions, Martha Chamallas & Lucinda M. Finley, eds. (Cambridge University Press 2020).

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  Presidential Selection: Historical, Institutional, and Democratic Perspectives

  James A. Gardner

  Published as Chapter 1 in The Best Candidate: Presidential Nomination in Polarized Times, Eugene Mazo and Michael Dimino, eds.

  It has been nearly two centuries since an American presidential election has evoked a crisis of confidence like that following the election of 2016. Not since the election of Andrew Jackson in 1828 has there been such a public display of anxiety concerning the methods by which we choose our chief executive. As in the contest of 1828 pitting the Democrat Jackson against his Federalist opponent John Quincy Adams, the presidential nominating process of 2016 produced a contest between a celebrity populist, widely seen as unqualified by experience or temperament, and a highly experienced and competent but deeply uninspiring political insider who had been anointed by establishment elites.

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  The TPP as a Potential New Paradigm for Trade Agreements: Implications and Opportunities (translated into Spanish)

  Meredith Kolsky Lewis

  Published in El TLCAN frente a nuevas negociaciones comerciales regionales: el TPP y el TTIP, María Celia Toro Hernández, ed.

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  Die Rolle von Nichtregierungsorganisationen bei der Rechtserzeugung [The Role of NGOs in the Creation of Norms]

  Makau wa Mutua

  Published in Dekoloniale Rechtskritik und Rechtspraxis, Karina Theurer & Wofgagng Kaleck, eds.

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  Pretrial Self-Incrimination, Miranda, and Truth

  Anthony O'Rourke

  Published in Interrogation, Confession, and Truth: Comparative Studies in Criminal Procedure, Lutz Eidam, Michael Lindemann & Andreas Ransiek, eds.

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  Climbing to 10¹¹: Globalization, Digitization, Shareholder Capitalism and the Summits of Contemporary Wealth

  David A. Westbrook

  Published as Chapter 11 in The Inequality Crisis, Edward Fullbrook & Jamie Morgan, eds.

  While we may find many sorts of inequality in the United States and elsewhere, this essay is about the specific form of inequality exemplified by Jeff Bezos or Bill Gates, that is, the Himalayan summits of contemporary wealth, mostly in the United States. Such wealth results from the confluence of three historical developments.

  First, the social processes referred to under the rubric of “globalization” have created vast markets. A dominant position in such markets leads not only to great wealth, but the elimination of peers. Since there are few such markets, relatively significant wealth is possessed by very few people.

  Second, digital markets powerfully tend toward monopoly for a number of reasons discussed below. Those fortunate enough to be the monopolists profit accordingly, both directly, by doing business, but especially by investor interest.

  Third, the actors in such digital markets are generally corporations, which are in turn largely owned by their founders. As a result, a few individuals have acquired almost unbounded wealth, at least as wealth is conventionally measured, nominal US dollars.

  Conversely, entire economic sectors (like “food” or “data”) are nominally under the dominance of such individuals. Political economy has been individualized, at least formally, to an astounding extent. A thorough normative political discussion of this state of affairs is beyond the bounds of this text.

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  Antitrust Norms in the United States and Financial Corruption (translated into Spanish)

  Christine P. Bartholomew

  Published in XLI Jornadas Internacionales de Derecho Penal: Criminalidad contemporánea y corrupción: ¿efectividad de la pena privativa de la libertad?.

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  Privilege and the Fight Against Corruption in the United States (translated into Spanish)

  Christine P. Bartholomew

  Published in XLI Jornadas Internacionales de Derecho Penal: Criminalidad contemporánea y corrupción: ¿efectividad de la pena privativa de la libertad?.