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  Magical Contracts, Numinous Capitalism

  David A. Westbrook

  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

  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.

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  Reflections: Leaving Flatland? Planar Discourses and the Search for the G-Axis

  David A. Westbrook

  Published in Political Affairs: Bridging Markets and Politics, Christina Garsten & Adrienne Sörbom, eds.

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  Insurance Online: Regulation and Consumer Protection in a Cyber World

  Aviva Abramovsky and Peter Kochenburger

  Published as Chapter 5 in The "Dematerialized" Insurance: Distance Selling and Cyber Risks from an International Perspective, Pierpaolo Marano, Ioannis Rokas & Peter Kochenburger, eds.

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  El Aspecto Subjectivo en los Delitos de Homicidio

  Guyora Binder

  Published in El Derecho Penal Continental y los Anglosajon en la Era de la Globalizacion, Universidad Finis Terrae, ed.

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  Introduction: Lively Legalities

  Irus Braverman

  Published as the introduction to Animals, Biopolitics, Law: Lively Legalities, Irus Braverman, ed.

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  The Regulatory Life of Threatened Species Lists

  Irus Braverman

  Published as Chapter 1 in Animals, Biopolitics, Law: Lively Legalities, Irus Braverman, ed.

  “The Regulatory Life of Threatened Species Lists” explores a prominent technology for the legal regulation of nonhuman life: the threatened species list. I argue that threatened species lists are biopolitical technologies: they produce and reinforce underlying species ontologies by creating, calculating, and governing the boundaries between various nonhuman species. Such a differentiated treatment of the life and death of nonhuman species through their en-listing, down- and up-listing, multi-listing, and un-listing translates into the positive protection and active governance of such species. Listing threatened species thus becomes a way to affirm — and to justify — which lives are more and most important to save, thereby reifying the distinction between those who save (humans) and those who can only be saved (nonhumans). Specifically, the last two decades have witnessed an explosion of national and global lists of threatened and endangered species. In 2010, at least 109 countries had produced a national list of threatened species and more than 25 listing systems of threatened species were used across North America alone. The IUCN Red List for Threatened Species is the first and most comprehensive attempt at the global listing of all threatened species and, increasingly, of all species. This chapter utilizes an empirical and ethnographic methodology to explore the nature of lists, and of the Red List in particular; it then proceeds to examine the biopolitical aspects of the Red List as well as its global, regulatory, scientific, and seductive powers.

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  Marine Protected Areas

  Kim Diana Connolly

  Published as Chapter 18 in Ocean and Coastal Law and Policy, Second Edition, Donald Baur, Tim Eichenberg, Georgia Victoria Hancock, 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 as Chapter 4 in Ocean and Coastal Law and Policy, Second Edition, Donald C. Baur, Tim Eichenberg & Michael Sutton, eds.

  Provides an overview of the regulation of coastal wetlands and other waters under Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and related laws.

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  Geduldig v. Aiello, 417 U.S. 484 (1974) (Judgment)

  Lucinda M. Finley

  Published as part of Chapter 10 in Feminist Judgments, Kathryn M. Stanchi, Linda L. Berger & Bridget J. Crawford, eds.

  In Geduldig, the Court was asked to decide whether California invidiously discriminated against women in violation of equal protection doctrine by excluding disabilities related to “normal” pregnancy and childbirth from its otherwise comprehensive employment disability insurance program. At the time, the U.S. Supreme Court had not yet clearly articulated that heightened scrutiny must apply for sex-based classifications, although it had strongly suggested as much in two recent cases, Reed v. Reed and Frontiero v. Richardson. The Court had also recently emphasized the importance of reproductive liberty in Cleveland Board of Education v. LaFleur, which struck down employers’ forced maternity leave policies. Furthermore, the lower court opinion in Geduldig had held that California's pregnancy exclusion denied equal protection to women. The three-judge district court opinion had emphasized in particular that under the standard articulated in Reed, states cannot impose statutory classifications based upon gender stereotypes.

  Yet six justices, led by Justice Stewart, rejected the plaintiffs’ claims. Most striking to many critics, the Court refused to recognize pregnancy discrimination as sex discrimination. The Court rejected the plaintiffs’ argument that the heightened level of “rational basis” scrutiny applied in Reed and Frontiero should apply to the California statute, because the statute was “a far cry from cases like [Reed and Frontiero] involving discrimination based upon gender as such.” Instead, the Court declared: “There is no risk from which men are protected and women are not.

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  International Political Economy and the Prisoner’s Dilemma: Compliance with International Law

  Meredith Kolsky Lewis

  Published as Chapter 8 in The Political Economy of International Law: A European Perspective, Alberta Fabricotti, ed.

  This chapter explores the concept of the prisoner’s dilemma in the context of compliance with international law. It examines the prisoner’s dilemma in a variety of international law contexts, from which international law can be seen as explanandum in that a prisoner’s dilemma sometimes leads to the creation of international law. International law can also serve as explanans in the context of the prisoner’s dilemma, in that international law has consequences and effects for prisoner’s dilemmas while not always resolving them. The chapter also identifies some limitations of the prisoner’s dilemma, in particular by highlighting examples of political economy factors that confound the assumptions inherent to a prisoner’s dilemma analysis.