Contributions to Books

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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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  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.

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  The ASEAN–Australia–New Zealand FTA (AANZFTA)

  Meredith Kolsky Lewis

  Published as Chapter 6 in 2 Bilateral and Regional Trade Agreements: Case Studies (2d ed.), Simon Lester, Bryan Mercurio & Lorand Bartels, eds.

  The ASEAN–Australia–New Zealand FTA (AANZFTA) combines two different pre-existing country groupings of long-standing. The first of these is ASEAN, the Association of Southeast Asian Nations, which was founded in 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand. This grouping has expanded over the years, with Brunei Darussalam joining in 1984, followed by Vietnam in 1995, Laos and Myanmar in 1997, and Cambodia in 1999. While ASEAN has existed for nearly 50 years, for most of that period it has served as an alliance based on economic and political cooperation rather than as a free trade agreement. However, the original members of ASEAN launched a free trade initiative, the ASEAN Free Trade Area (AFTA), in 1992. In 2003, after the expansion of ASEAN to its current membership, ASEAN announced plans to create an ASEAN Community comprising three pillars, one of which would be a free trade agreement to be called the ASEAN Economic Community. In 2007, this intention was memorialized in writing with a timetable to form the Community by 2015.

  The other pre-existing alliance was that between Australia and New Zealand, which have a long history of formal trade agreements. In 1965, close in time to the creation of ASEAN, these Oceania neighbours formed a free trade agreement known as the New Zealand–Australia Free Trade Agreement. This FTA was eclipsed in 1983 by the highly ambitious Australia–New Zealand Closer Economic Relations Trade Agreement (ANZCERTA), most commonly referred to as Closer Economic Relations (CER).

  Given the linkages already in place between the ASEAN countries on the one hand, and Australia and New Zealand on the other, the primary trade gains to be had pursuant to AANZFTA lie in new linkages between Australia and New Zealand and specific ASEAN members. Indeed, pursuant to an exchange of letters bearing treaty status, Australia and New Zealand have agreed that AANZFTA obligations only apply between them to a limited extent, including the tariff and Rules of Origin (ROO) commitments and the General Exceptions chapter.

  Following several years of negotiations, these two groupings formed the ASEAN–Australia–New Zealand Free Trade Agreement (AANZFTA), which came into force on 1 January 2010 for most of its participants. AANZFTA has been in effect for all participants since January 2012.

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  The United States' Path to Concluding the Trans-Pacific Partnership: Will TPA + TAA = TPP?

  Meredith Kolsky Lewis

  Published as Part II, Chapter 1 in European Yearbook of International Economic Law, Marc Bungenberg, Christoph Herrmann, Markus Krajewski & Jörg Philipp Terhechte, eds.

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  When Popular Decisions Rest on Shaky Foundations: Systemic Implications of Selected WTO Appellate Body Trade Remedies Jurisprudence

  Meredith Kolsky Lewis

  Published as Chapter 9 in International Economic Law and Governance: Essays in Honour of Mitsuo Matsushita, Julien Chaisse & Tsai-yu Lin, eds.

  This chapter argues that the WTO Appellate Body has not been consistent in applying Article 31 of the VCLT and considering the context of the relevant treaty text in light of its object and purpose. It has instead either been overly mechanistic in its textual interpretation or has strayed from the text, sometimes with the appearance of preferring an outcome-based result. Part I of the chapter discusses the appropriate role context should play in interpreting the WTO agreements. Parts II through IV critique aspects of the Appellate Body’s jurisprudence in the zeroing cases; the 1916 Act dispute; and the early safeguards cases, as generating interpretive difficulties by failing to give enough attention to real-world context and object and purpose. Part V explores possible reasons for these departures by the Appellate Body from a contextualised textual analysis, and identify some systemic implications of these decisions.

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  Africans and the ICC: Hypocrisy, Impunity, and Perversion

  Makau wa Mutua

  Published as Chapter 3 in Africa and the ICC: Perceptions of Justice, Kamari M. Clarke, Abel S. Knottnerus, & Eefje de Volder, eds.

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  Closing the "Impunity Gap" and the Role of State Support for the ICC

  Makau wa Mutua

  Published in Part II of Contemporary Issues Facing the International Criminal Court, Richard H. Steinberg, ed.

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  Is the Age of Human Rights Over?

  Makau wa Mutua

  Published as Chapter 43 in The Routledge Companion to Literature and Human Rights, Sophia A. McClennen & Alexandra Schulthesis Moore, eds.

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  Flexible Conservation in Uncertain Times

  Jessica Owley and David Takacs

  Published as Chapter 4 in Contemporary Issues in Climate Change Law and Policy: Essays Inspired by the IPCC, Robin Kundis Craig & Stephen R. Miller, eds.

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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 Antitrust and Unfair Competition Law, Cheryl Lee Johnson, ed.

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  Appeals from Orders of Magistrate Judges in Federal Court

  Robert A. Stark

  Published as Chapter 13 in Nebraska Appellate Practice Handbook, Daniel L. Real, Danny C. Leavitt & Lorrie B. Benson, eds.

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  Bankruptcy Appeals

  Robert A. Stark

  Published as Chapter 12 in Nebraska Appellate Practice Handbook, Daniel L. Real, Danny C. Leavitt & Lorrie B. Benson, eds.

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  Civil Appeals to the Eighth Circuit Court of Appeals

  Robert A. Stark

  Published as Chapter 14 in Nebraska Appellate Practice Handbook, Daniel L. Real, Danny C. Leavitt & Lorrie B. Benson, eds.

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  Federal Criminal Appeals

  Robert A. Stark

  Published as Chapter 15 in Nebraska Appellate Practice Handbook, Daniel L. Real, Danny C. Leavitt & Lorrie B. Benson, eds.

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  The Three Percent: Common Issues in Nonautonomous Law School Libraries

  Elizabeth G. Adelman

  Published in Part I of Academic law library director perspectives: case studies and insights, Michelle M. Wu, ed.

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  The Coptown Case: Inviolable Status and Desert

  Guyora Binder

  Published in Inherent and Instrumental Values: Excursions in Value Inquiry, G. John M. Abbarno, ed.

  Francis Kamm has proposed a concept of inviolable status as a reason to value goods like life or deserved punishment that precludes maximizing trade-offs, but without resorting to agent relative constraints. According to this idea, one has an inviolable status in so far as one holds an entitlement that cannot be violated in order minimize violations of that entitlement. By sacrificing one person’s entitlement to protect the entitlements of others, one extinguishes the inviolable status of all. This concept is offered to explain deontological ethics as a practice of respecting the equal dignity of others. By presenting a series of hypothetical problems about the imposition of deserved punishment in the face of uncertainty, this paper denies that the deontologist can avoid trade-offs. In addition, the paper denies that inviolability offers any dignitary advantage over having one’s welfare counted in the utilitarian calculus.

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  En-Listing Life: Red is the Color of Threatened Species Lists

  Irus Braverman

  Published as Chapter 11 in Critical Animal Geographies: Politics, Intersections and Heirarchies in a Multispecies World, Kathryn Gillespie & Rosemary-Claire Collard, eds.

  The idea that every species should be assessed, ranked, and listed according to its projected risk of extinction is now a commonly accepted practice in conservation. Threatened species lists rank species in a linear progression from the least to the most endangered. This chapter explores the biopolitical nature of such lists. It shows how listing threatened species becomes a way to affirm — and justify — that life which is more and most important to save. The chapter argues that threatened species lists reinforce biopolitical differentiation not only between perceivably distinct nonhuman species but also between Homo sapiens and nonhuman species.

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  Is the Puerto Rican Parrot Worth Saving? The Biopolitics of Endangerment and Grievability

  Irus Braverman

  Published as Chapter 5 in Economies of Death: Economic Logics of Killable Life and Grievable Death, Patricia J. Lopez & Kathryn A. Gillespie, eds.

  “Is the Puerto Rican Worth Saving? The Biopolitics of Endangerment and Grievability” describes how threatened species lists elevate listed nonhuman species from the realm of biological life into that of a political life that is both worth saving and worth grieving. The chapter provides a novel perspective on the biopolitics of lists that highlights both their affirmative properties and their acute relevance for understanding the governance of entire nonhuman species.

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  More-than-Human Legalities: Advocating an "Animal Turn" in Law and Society

  Irus Braverman

  Published as Chapter 20 in The Handbook of Law and Society, Austin Sarat & Patricia Ewick, eds.

  What is the role of nonhumans, and of nonhuman animals in particular, in the constitution of law? How should legal systems account for societies that include not only humans but also nonhuman entities? What are the intersections between law and nonhuman life? And how to overcome the anthropocentric biases in modern legal systems? Such questions and others may provide fertile grounds for law and society investigations. Despite the richness and complexity of these investigations, however, the law and society community has typically relegated the “question of the animal” to the discourse of animal rights. Within this discourse, legal rights are extended to certain nonhuman animals through the same liberal framework that has afforded humans’ rights beforehand: vertebrates, invertebrates, microbes, and non-living entities must first cross Western law’s threshold of personhood to obtain rights. This chapter suggests, alternatively, that sociolegal scholarship could greatly benefit from moving beyond the rights discourse of animal law to a new subject of inquiry: more-than-human legalities. By acknowledging the myriad ways of being in the world, their inherent interconnections, and their manifestations in and constitutions of law, more-than-human legalities extend the advocacy-oriented scholarship of animal rights to highlight how both animality and humanness are deeply embedded in the construction of law and, reciprocally, how law is acutely relevant for constituting the animal. Indeed, while nonhumans render law’s operations – in fact, its very existence as such – possible, law also constitutes animal life and renders it meaningful in a variety of ways.