Contributions to Books

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  Looking Backward, Looking Forward

  David M. Engel

  Published as Chapter 17 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song.

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  Karl’s Law School, or The Oven Bird in Buffalo

  Alfred S. Konefsky

  Published as Chapter 4 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song.

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  The Embedded Liberalism Compromise in the Making of the GATT and Uruguay Round Agreements

  Meredith Kolsky Lewis

  Published as Chapter 2 in The Future of International Economic Integration: The Embedded Liberalism Compromise Revisited, Gillian Moon & Lisa Toohey, eds.

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  Constitutional Erosion and the Challenge to Secular Democracy in India

  Manoj Mate

  Published as Chapter 22 in Constitutional Democracy in Crisis?, Mark A. Graber, Sanford Levinson & Mark Tushnet, eds. (2018).

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  Client Selection

  Lynn M. Mather

  Published as Chapter 6 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song.

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  Environmental Principles in U.S. and Canadian Law

  Errol E. Meidinger, Daniel Spitzer, and Charles Malcomb

  Published as Chapter 29 in Principles of Environmental Law, Ludwig Krämer & Emanuela Orlando, eds.

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  Is Race Really the Issue? Examining the Fallacy of "Black Foreigner Privilege”

  Tolulope F. Odunsi

  Published as Chapter 1 in Pan African Spaces: Essays on Black Transnationalism, Msia Kibona Clark, Phiwokuhle Mnyandu & Loy L. Azalia, eds.

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  The Use of Property Law Tools for Soil Protection

  Jessica Owley

  Published in International Yearbook of Soil Law and Policy 2017, Harald Ginzky, Elizabeth Dooley, Irene L. Heuser, Emmanuel Kasimbazi, Till Markus & Tianbao Qin, eds.

  Open Access This book is licensed under the terms of the Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

  The images or other third party material in this book are included in the book’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the book’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

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  Sez Who? Critical Legal History Without a Privileged Position

  John Henry Schlegel

  Published as Chapter 30 in Oxford Handbook of Historical Legal Research, Markus D. Dubber & Christopher Tomlins, eds.

  Scholars active in the Critical Legal Studies movement of the 1980s regularly attacked the scholarship of liberal legalist scholars by using a variety of then contemporary epistemological theories that argued for the impossibility of any observer attaining a neutral position from which to observe social activities. Somewhat surprisingly, liberal legalist scholars seldom turned this criticism back at the work of CLS scholars who themselves never criticized their own work as they did that of other scholars. The examination of several pieces of CLS inspired history of labor law shows how engaging in such self-criticism might have further strengthened this very strong body of scholarship.

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  Magical Contracts, Numinous Capitalism

  David A. Westbrook

  Published as Chapter 2 in Magical Capitalism: Enchantment, Spells, and Occult Practices in Contemporary Economies, Brian Moeran & Timothy de Waal Malefyt, eds.

  One suspects that anthropology’s long preoccupation with magic has much to do with the widespread sense, famously articulated by Weber, that becoming modern involves disenchantment, literally losing the sense that life is magical. This chapter takes issue with that suspicion and suggests that magic itself is a shifting thing, strangely hard to lose, perhaps more durable than often feared. Very mundane and seemingly secular things, legal doctrines and jurisprudence concerning contracts, require rather breathtaking faith in the efficacy of words to shape reality. (“Contracts” here means nothing more exotic than the economic transactions that inhabitants of contemporary society engage in daily.) Functioning at all in our very commercial society requires something akin to enchantment, or perhaps enchantment without the wonder.

  An earlier version of these ideas appeared under the same title in Anthropology Today, v. 32 n. 6, special issue “Capitalism and Magic Part I,” December 2016, pp 13–17.

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  Agency in State Agencies

  Anya Bernstein

  Published as Chapter 5 in Distributed Agency, N. J. Enfield & Paul Kockelman, eds.

  The democratic state is an administrative state: the actual work of representative governance is done primarily in administrative agencies, which interpret and implement the often vague ambitions inscribed in statutes. When we talk about agency in the state, then, we must primarily be talking about agency in agencies. That may seem odd. Bureaucracy seems like the absence of agency: just mechanistic gear-grinding continuing things begun by other, distant, powerful actors. Where can agency find a foothold amid the faceless people, the featureless buildings, the infinite red tape, the endless unread files? So, another oddity: administration has world-changing effects, yet seems bereft of agents. Infuriatingly — yet conveniently — bureaucracy appears as an undifferentiated entity exerting power that cannot be held to account.

  This common image, it turns out, distorts our understanding of both agencies and agency. It conceals the complex distribution of possibility and responsibility within bureaucracy, which involves individual subjectivities, interpersonal relations, and socially structured decisionmaking (Blau 1963; Bernstein 2008). And it obscures the varied ways that accountability for bureaucratic action is structured by different social arenas allow. What kind of accountability is available, it turns out, depends on the position from which one does the accounting. Here, I unpack one administrative process to show how units of agency emerge and blend in the ongoing process of differentiation and subsumption that characterizes bureaucratic action. I then explain how one particular social arena — litigation — provides a scaffolding for bureaucratic accountability that, like all scaffoldings, both enables and constrains.

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  Editing the Environment: Emerging Issues in Genetics and the Law

  Irus Braverman

  Published as the introduction to Gene Editing, Law, and the Environment, Irus Braverman, ed.

  Developed in 2012, CRISPR-Cas9 is emerging as a powerful new genome engineering technology and as a locus of international concern over the ethical and legal norms that will guide its application in the biosciences. This volume extends beyond the human applications of gene editing technologies to consider the social, cultural, and ecological implications of gene editing technologies. Participants from a wide array of disciplines and professional backgrounds examine and problematize the existing scientific, legal, and political categories and imaginaries that have informed the regulatory regimes pertaining to gene editing. While most emerging conversations have treated human and nonhuman applications of gene editing separately, this collection draws attention to how these new technologies, and CRISPR and gene drives in particular, apply to nonhuman populations and ecosystems, alongside, and in conversation with, their applications to humans. In addition to shedding a new light on the human-nonhuman divide, novel gene editing technologies like CRISPR and gene drives also challenge other traditional bifurcations, such as that between nature and culture, law and science, public and private, lab science and field science, and synthetic and conservation biology. Such developments arguably bring to heightened focus myriad issues in the nexus of law, science, and the environment.

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  Gene Drives, Nature, Governance: An Ethnographic Perspective

  Irus Braverman

  Published as chapter 3 in Gene Editing, Law, and the Environment, Irus Braverman, ed.

  Synthetic gene drives raise ethical, ecological, and legal questions that are sometimes difficult to grasp. What is clear, however, is that the power to directly alter not just a singular form of life but the genetics of entire populations and species are currently both under-regulated and under-theorized. In place of state regulations, what seems to be emerging is a form of self-regulation by the gene drive scientists themselves. My chapter draws on in-depth interviews with several prominent gene drive scientists to explore their approach toward nature, animals, and the environment. My assumption has been that their approach impacts and regulates the way they work, and this assumption has been confirmed through the more personal stories that each of these scientists has generously shared with me. Although they have not contemplated these issues to the same degree, a few common assumptions about the role of nature and about animal-human relations did emerge from the interviews, most prominently the notion that killing insect populations, modifying their genes, and impacting the planet’s ecological systems are justified in order to reduce human suffering and produce novel ecosystems.

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  The Life and Law of Corals: Breathing Meditations

  Irus Braverman

  Published as Chapter 19 in Handbook of Research Methods in Environmental Law, Andreas Philippopoulos-Mihalopoulos & Victoria Brooks, eds.

  Corals have recently emerged as both a sign and a measure of the catastrophic future of life on earth at this particularly volatile time, referred to by some as the Anthropocene. As such, they have been the focus of intensive conservation management. Their symbiotic algae-bacterial-animal relationship and their precarious oceanic, ecological, and chimeric life make corals into fascinating windows into biopolitical regimes of conservation. Corals are also ‘good to think with’ about the interface of culture, science, and law and about the particular ways through which law makes life. My chapter draws on a dozen in-depth interviews with scientists and policy makers, mostly in the United States but also in Australia and Israel, as well as participatory observations of both coral and coral scientists, to explore how laws calculate and govern the project of saving (certain) coral life. I refer to this reflective, ‘breathing-with’ methodology, whereby the ethnographer submerses herself with the subjects or topic of her inquiry, as ‘immersive ethnography.’ Utilizing this immersive ethnographic stance, my chapter recognizes the ‘becoming legalities’ of coral conservation, demonstrating that coral life and death are not only biological and cultural, but also legal, phenomena.

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  What is Tort Reform Really About?

  Lucinda M. Finley

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

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  La contienda intergubernamental en sistemas federados

  James A. Gardner

  Published in Yearbook of the National Academy of Law.

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  Bilateralism in International Economic Law

  Meredith Kolsky Lewis

  Published as Chapter 1.12 in Elgar Encyclopedia of International Economic Law, Thomas Cottier and Krista Nadakavukaren Schefer, eds.

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  Mega-FTAs and Plurilateral Trade Agreements: Implications for the Asia-Pacific

  Meredith Kolsky Lewis

  Published as Chapter 24 in Paradigm Shift in International Economic Law Rule-Making: TPP as a New Model for Trade Agreements?, Julien Chaisse, Henry Gao & Chang-fa Lo, eds. (2017).

  During the first twenty years of the World Trade Organization’s history, the multilateral trading system has increasingly been accompanied by (1) free trade agreements (FTAs) and (2) preferential trade arrangements (PTAs). Such agreements have proliferated steadily, with several hundred having been notified to the WTO as of early 2016. However, there have been some significant changes in the types of trade agreements being negotiated outside the WTO in recent years. Since 2010, there has been a continued proliferation of “traditional” FTAs, but there have also been notable new developments. These include: an increase in multi-party FTAs; an increase in FTAs featuring more than one major economy; FTA coverage extending beyond the scope of the WTO Agreements; and subject-specific plurilateral negotiations being conducted outside the WTO negotiating structure. This chapter documents the rapid ascendancy of mega-FTAs and plurilateral trade agreements and explores the implications of these larger, more complicated and arguably more powerful trade agreements, with an emphasis on the Asia-Pacific region.

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  Multilateralism in International Economic Law

  Meredith Kolsky Lewis

  Published as Chapter 1.13 in Elgar Encyclopedia of International Economic Law, Thomas Cottier and Krista Nadakavukaren Schefer, eds.

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  Plurilateralism in International Economic Law

  Meredith Kolsky Lewis

  Published as Chapter 1.14 in Elgar Encyclopedia of International Economic Law, Thomas Cottier and Krista Nadakavukaren Schefer, eds.

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  Voluntary Export Restraints (VERs) and Orderly Marketing Arrangements (OMAs)

  Meredith Kolsky Lewis

  Published as Chapter 3.10 in Elgar Encyclopedia of International Economic Law, Thomas Cottier and Krista Nadakavukaren Schefer, eds.

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  Big Government Against Social Responsibility: A Vulnerability Critique of Privatization's Public Priorities

  Martha T. McCluskey

  Published as Chapter 3 in Privatization, Vulnerability, and Social Responsibility: A Comparative Perspective, Martha Albertson Fineman, Titti Mattsson & Ulrika Andersson, eds.

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  Putting “Human Rights” Back into the U.N. Guiding Principles on Business and Human Rights: Shifting Frames and Embedding Participation Rights

  Tara J. Melish

  Published as Chapter 4 in Business and Human Rights: Beyond the End of the Beginning, Cesar Rodriguez-Garavito, ed.

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  . . . and Law?

  John Henry Schlegel

  Published as Chapter 18 in Searching for Contemporary Legal Thought, Justin Desautels-Stein & Christopher Tomlins, eds.

  The locution “law and . . . (some other discipline)” implicitly asserts the primacy of legal doctrine and institutions narrowly conceived for coming to understand phenomena in which law takes a part. The ordinary story of American legal theory – formalism then realism then contemporary legal thought – can be understood to repeat the triumphalism implicit in “law and . . .” Of course, the story of American legal theory could possibly be read differently -- as a series of responses to the inability of law to dictate the terms of its use and so as evidence law’s subordination to other ways of understanding such phenomena. Such a possibility would dictate a different ordering of important words into “. . . and Law.” This paper attempts to examine the plausibility of the latter locution by examining some of the crucial bodies of knowledge and recurrent actions of putatively non-legal actors that led up to the no longer recent Great Recession.

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  Critical Issues for Qualitative Research

  David A. Westbrook

  Published in The SAGE Handbook of Qualitative Research, Norman K. Denzin & Yvonna S. Lincoln, eds.

  Academic qualitative research requires current social commitment of resources. Such commitment is waning. Qualitative research traditionally has been underwritten by a liberal understanding of the importance of culture, in turn dependent on an imaginary of the nation as the heart of social life. Politically, the sovereign nation state cannot organize "culture" in an integrated Europe or a global "City of Gold." Socioeconomically, academic accreditation is the site of competition for employment, and therefore tends to be utilitarian. Institutionally, the University is structured around the figure of the bureaucratic administrator rather than the scholar. Qualitative research is likely to survive, albeit marginally, for reasons including inertia institutional prestige, and concerns for diversity and identity. In theory, however, qualitative research could animate a new understanding of the University as a site for critically addressing the global contemporary.