Contributions to Books

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  Una nota sobre neoconstitucionalismo [A Note on 'New Constitutionalism']

  Jorge Luis Fabra-Zamora

  Published as Chapter 21 in Filosofía del Derecho Constitucional: Cuestiones Fundamentales, Jorge Luis Fabra-Zamora & Leonardo García Jaramillo, eds.

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  Disputes, Social Construction and Transformation

  Lynn M. Mather and Barbara Yngvesson

  Published in International Encyclopedia of Social and Behavioral Sciences, second edition, James D. Wright, ed.

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  Personal Responsibility for Systemic Inequality

  Martha T. McCluskey

  Published as Chapter 15 in Research Handbook on Political Economy and Law, Ugo Mattei & John D. Haskell, eds.

  Equality has faded as a guiding ideal for legal theory and policy. An updated message of personal responsibility has helped rationalize economic policies fostering increased inequality and insecurity. In this revised message, economic “losers” should take personal responsibility not only for the harmful effects of their individual economic decisions, but also for the harmful effects of systemic failures beyond their individual control or action. In response to the 2008 financial crisis, this re-tooled message of personal responsibility promoted mass austerity in place of targeted financial industry culpability and penalty. By presenting unequal economic loss as the inevitable result of generally beneficial systems, this flawed logic concludes that the most legitimate response to systemic failure is unequal personal sacrifice, not political mobilization in support of stronger protection from unequal risk and plunder.

  This chapter explores how this message weakened the majority report of Financial Crisis Inquiry Commission, despite its voluminous evidence of institutional problems. Further, it shows how this message inverts legal responsibility for devastating corporate wrongdoing, so that sacrifice by innocent victims appears to be more productive and proper than fair and meaningful law enforcement. Finally, I analyze how this troubling message is implicitly advanced in the seemingly progressive intellectual defense of equality by legal scholar Daniel Markovits. Markovits challenges the traditional personal responsibility argument that unequal poverty and insecurity stem from bad individual choices. Yet because he assumes that this inequality generally comes from benign institutions limited by natural scarcity, his reasoning nonetheless tends to suggest that responsible policy requires accepting substantial individual sacrifice by those who lose out. To instead revive the ideal of equality, we must go further to challenge the assumption that political economic structures and institutions regularly producing unequal and severe economic harm deserve submission rather than reform.

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  Masculinities

  Athena D. Mutua

  Published in The Oxford Encyclopedia of Latinos and Latinas in Contemporary Politics, Law, and Social Movements, Suzanne Oboler & Deena J. González, eds.

  This encyclopedia entry briefly summarizes the current foundational understandings of masculinities scholarship with a particular focus on Latino masculinities and where the limited but growing scholarship on Latino men might go in the future.

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  Masculinities

  Athena D. Mutua

  Published in The Oxford Encyclopedia of Latinos and Latinas in Contemporary Politics, Law, and Social Movements, Suzanne Oboler & Deena González, eds.

  This encyclopedia entry briefly summarizes the current foundational understandings of masculinities scholarship with a particular focus on Latino masculinities and where the limited but growing scholarship on Latino men might go in the future.

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  Sustainability thinking for the climate change generation

  Jessica Owley

  Published in Rethinking Sustainability to Meet the Climate Change Challenge, Jessica Owley & Keth H. Hirokawa, eds..

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  Legal Realism

  John Henry Schlegel

  Published in International Encyclopedia of the Social and Behavioral Sciences, James D. Wright, ed.

  Legal realism was a movement in American legal thought between World War I and World War II. The American Legal Realists were legal academics who shared a politics that was liberal, though not socialist, and four overlapping interests. The first was in what Pound called ‘the law in action,’ where the Realists pursued studies of state and federal courts, banks, and parking and traffic enforcement. The second interest was in criticizing the doctrinal results of legal formalism (see Legal Formalism) where they worked in areas such as antitrust, commercial and corporate law, conflict of laws, evidence, and torts. The third interest was in judicial decision making, where the Realists argued that the inability of the doctrinal formulation of legal rules to yield determinate answers in concrete cases established the subjectivity of judicial decisions. The fourth was in legal education where they supported the reorganization of the course materials of legal study in terms of the functions performed by legal institutions and encouraged a shift from the justification of law in terms of derivation from supposedly logical principles to one based on assumed knowledge of social conditions to which law is applied in the pursuit of supposedly agreed-upon social policy.

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  The Changing Landscape of Trademark Law in Tinseltown: From Debbie Does Dallas to The Hangover

  John Tehranian and Mark Bartholomew

  This Essay, a chapter published in the book Hollywood and the Law (Palgrave Macmillan / British Film Institute, 2015), explores how courts have sought to balance the competing interests at stake when filmmakers make unauthorized uses of trademarks in their work and brand owners threaten liability for infringement. Using the seminal Rogers v. Grimaldi decision as a key pivot point, the Essay traces the remarkable change in approaches that courts have taken to First Amendment defenses in trademark cases in the past few decades. In presenting case studies of two opinions -- Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd. (decided a decade before Rogers) and Louis Vuitton v. Warner Bros. (decided two decades after Rogers) -- the Chapter contextualizes the growing judicial recognition of free speech defenses by filmmakers, the critical limitations of this solicitousness to artistic choice, and the way in which this trend may have impacted the artistry and economics of Hollywood.

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  Gossip Law

  Samantha Barbas

  Published as Chapter 6 in When Private Talk Goes Public: Gossip in United States History, Kathleen Feeley & Jennifer Frost, eds.

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  Foundations of the Legislative Panopticon: Bentham’s Principles of Morals and Legislation

  Guyora Binder

  Published as Chapter 4 in Foundational Texts in Modern Criminal Law, Markus D. Dubber, ed.

  Bentham contributed to the development not only of moral philosophy, jurisprudence, and policy analysis, but also criminal law. This chapter interprets his concepts of law and policy as explicated in his best known work, as foundations for his views on criminal law. These foundational concepts explain his view that criminal law should be expressed in a code consisting of offenses defined by reference to legally protected interests and culpable expectations of injury to those interests. In making this argument, the chapter explores Bentham’s analogy of legislation to architecture and of the utility principle to the foundation of a building.

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  Homicide

  Guyora Binder

  Published as Chapter 31 in The Oxford Handbook of Criminal Law, Markus D. Dubber & Tatjana Hörnle, eds.

  This review of the development of homicide law in England and the United States shows that contemporary law reflects the sustained influence of a utilitarian reform movement. That movement organized legal thought around a conception of human action as risking or causing results, and a conception of the function of law as minimizing cost. Within this framework, homicide was conceptualized as the expected causation of death. Traditional conceptions of homicide emphasizing manifestly violent acts or antisocial motives came to be seen as archaic and confused. During this development, requirements of violence were first reinterpreted as evidentiary presumptions of culpability, and then criticized as formalistic legal fictions. In this way homicide evolved from a crime of killing to a crime of causing.

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  Animals and Law in the American City

  Irus Braverman

  Published as Chapter 6 in Environmental Law and Contrasting Ideas of Nature: a Constructivist Approach, Keith H. Hirokawa, ed.

  Whereas a large and growing scholarly literature is dedicated to studying human populations in the city, not much has been written about nonhuman animals in this space. This essay explores the presence of nonhuman animals in the American city through a legal lens. I begin with a few general contemplations about the legal classification of animals in American cities, and then move to explore specific legal classifications of animals in cities: domestic and companion animals, agriculture or livestock animals, wild animals, and pests. I argue that such animal classifications are not as fixed and static as they present themselves to be. For example, a pig or a horse may be a companion animal under anti-cruelty provisions or livestock under provisions regulating agribusiness. Studying various examples of animal reclassification, this essay demonstrates the inherent messiness of the legal ordering of animals and reveals the legal struggles to redefine such ordering. The honeybee in particular demonstrates the fluidity between various animal classifications and the ways in which animals are subject to, and themselves affect, legal and administrative practices.

  Alongside the attempt to classify animals, a considerable effort also goes into keeping animals confined within their particular classifications. The prohibitions from keeping wild and farm animals as pets, and those that prohibit treating pets as pests or pests as pets — all point to the desire of lawmakers to place and keep animals within their classifications so as to ensure that cities are safe, sanitized, and free of animal nuisances. At the same time, human and nonhuman animals also express their own, sometimes conflicting, trajectories that transgress and challenge their black-boxing within legal classifications, forcing lawmakers and enforcers to adapt or develop new legal ways to organize disorderly nature so as to redefine, reestablish, and reinforce order. My reading of animal laws thus illuminates the dynamic and often conflicted human-animal existence in the city and its translation and reiteration by legal texts and practices.

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  Captive for Life: Conserving Extinct in the Wild Species through Ex Situ Breeding

  Irus Braverman

  Published as Chapter 12 in The Ethics of Captivity, Lori Gruen, ed.

  Are there “fates worse than death,” to use Kurt Vonnegut’s title? Is captivity one such fate? Captive for Life examines these questions through the lens of conservation biology’s ex situ models of captive management — and captive breeding in particular — for wild animals, and especially for species that have been designated as Critically Endangered or as Extinct in the Wild. Drawing on interviews with leading conservation biologists, the chapter describes the erosion of the distinctions between species management in captivity and in wild nature, often referred to among experts as ex situ and in situ conservation. The chapter examines situations in which the extinction, or near-extinction, of a species in the wild is imminent, and a captive breeding program is initiated — typically by zoos — to ensure this species’ survival. Finally, I hint toward the possibility of abandoning the “in” and “out” paradigm, that has so characterized modern conservation narratives, in favor of an understanding of conservation that focuses on a more dynamic and less predetermined view of ecosystems and populations. Such a holistic model breaks with the bifurcations of modern conservation to offer relational configurations for managing wild life.

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  Good Night, Zoo: a Children's Guide to Humanimal Spaces

  Irus Braverman

  Published in Real Virtuality: About the Destruction and Multiplication of World, Ulrich Gehmann and Martin Reiche, eds.

  Children’s books interpellate their readers and listeners into a vision of nature in which boundaries and dualities begin to shudder and collapse. Braverman’s essay focuses on Peggy Rathmann’s story Good Night, Gorilla to show how images of city and wilderness, captivity and freedom, home and zoo, and human and nonhuman animality can become fluid, thereby opening up possibilities for other, novel spaces to emerge. This book’s liminal scheme sets up the stage for the surprising hybrids that can occur when species meet.

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  Order and Disorder in the Urban Forest: A Foucauldian-Latourian Perspective

  Irus Braverman

  Published as Chapter 9 in Urban Forests, Trees, and Greenspace: A Political Ecology Perspective, L. Anders Sandberg, Adrina Bardekjian & Sadia Butt, eds.

  We pass by street trees everyday. Their existence as well as their particular location in the city seems obvious, innocuous, natural. But, as is the case with most taken-for-granted "things" (Brown, 2011), some excavation is bound to reveal a more complicated and even ideological story. This study focuses on such a story: the story of the clandestine governance of nature and of humans by way of nature - all through the construction and regulation of city street trees. This story problematizes the mundane display of urban space in general, and of urban street trees in particular, as technical and apolitical, and instead promotes an understanding of nonhumans and humans as constantly negotiating spatial order and disorder through law.

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  Who's Afraid of Methodology? Advocating a Methodological Turn in Legal Geography

  Irus Braverman

  Published as Chapter 5 in The Expanding Spaces of Law: a Timely Legal Geography, Irus Braverman, Nicholas Blomley, David Delaney & Alexandre Kedar, eds.

  Alongside the push to expand legal geography into new spaces and temporalities “out there,” this chapter proposes an inward expansion: a reflection on how we come to write what we write rather than where, when, and why we do so. Such greater awareness to the craftsmanship of our scholarship will pay off in a range of ways and, most importantly, by increasing our methodological diversity and interdisciplinarity. The chapter reflects on the pitfalls and virtues of my own zoo ethnography with the aim of inviting legal geographers to explore how they have crafted and choose to craft their own research. The chapter argues that because of our unique training in the nexus of law and geography, we are well equipped to explore administrative structures and cultures. Institutional and bureaucratic ethnographies should thus perform a more important role in legal geography.

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  Introduction: Expanding the Spaces of Law

  Irus Braverman, Nicholas Blomley, David Delaney, and Alexandre (Sandy) Kedar

  Published as the introduction to The Expanding Spaces of Law: a Timely Legal Geography, Irus Braverman, Nicholas Blomley, David Delaney & Alexandre Kedar, eds.

  Legal geography is a stream of scholarship that takes the interconnections between law and spatiality, and especially their reciprocal construction, as core objects of inquiry. Legal geographers contend that in the world of lived social relations and experience, aspects of the social that are analytically identified as either legal or spatial are conjoined and co-constituted. The legal geography scholarship highlights that nearly every aspect of law is either located, takes place, is in motion, or has some spatial frame of reference. In other words, law is always “worlded” in some way. Likewise, every bit of social space, lived places, and landscapes are inscribed with legal significance. Distinctively legal forms of meaning are projected onto every segment of the physical world. These meanings are open to interpretation and may become involved in a range of legal practices. Such fragments of a socially segmented world — the where of law — are not simply the inert sites of law, but are inextricably implicated in how law happens.

  This introduction to the forthcoming book The Expanding Spaces of Law: A Timely Legal Geography (Stanford University Press) identifies and elaborates on three modes of legal geographic research. The first mode of legal geography includes disciplinary work in law or in geography that is modeled on the conventional image of import and export. The second is an interdisciplinary pursuit in which scholars in the eponymous fields draw on the work of each other and seek to contribute to the development of a common project. The third mode moves beyond legal geography to trans-disciplinary, or perhaps even post-disciplinary, modes of scholarship. Although these three modes exist concurrently, the general trajectory over time has been from disciplinary to interdisciplinary and, finally, to post-disciplinary orientations. This triadic classification helps organize the rich yet eclectic legal geography scholarship that has evolved over the last thirty years or so. While this introduction contains elements of each mode, it also urges interested scholars to move legal geography beyond the disciplinary boundaries into the horizons of a post-legal geography. Ironically, then, the ultimate success of legal geography will be in its ability to transcend the bi-disciplinary focus that has characterized so much of this scholarship up to this point.

  In addition to the introduction, the book consists of ten chapters. In the first three, Keebet and the late Franz von Benda-Beckmann, Mariana Valverde, and Nicholas Blomley identify gaps and obstacles in existing approaches to legal geography scholarship and offer remedies. An important sub-theme in each of these chapters is the importance of being more mindful of the temporalities of social, spatial, and legal phenomena. Authored by Alexandre (Sandy) Kedar and Irus Braverman, the next two chapters ask how a critical comparative legal geography might not only draw upon but also contribute to a rejuvenated project of comparative law and the methodological stakes of legal geography scholarship. The remaining five chapters expand legal geography into new spaces and make new connections. Specifically, Michael Smith, Antonio Azuela and Rodrigo Meneses, Lisa Pruitt, Melinda Benson, and David Delaney develop novel interpretive resources with the aim of enhancing interdisciplinarity, applying these tools to particular kinds of spaces and places: war zones, the street, the workplace, American rurality, and procedural spaces.

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  Comparative Criminal Law

  Luis E. Chiesa

  Published as Chapter 47 in The Oxford Handbook of Criminal Law, Markus Dubber & Tatjana Hörnle, eds.

  Criminal law is a parochial discipline. Courts and scholars in the English speaking world seldom take seriously the criminal statutes, cases and scholarly writings published in the non-English speaking world. The same is true the other way around. This is unfortunate. Much can be learned from comparing the way in which the world’s leading legal systems approach important questions of criminal theory.

  This Chapter introduces the reader to comparative criminal law with the aim of demonstrating how comparative analysis can enrich both domestic and international understandings of criminal law. The Chapter is comprised of four parts. Part I clarifies what it means to do comparative criminal law and distinguishes it from similar endeavors such as compiling criminal law. Part II explains why engaging in comparative analysis is useful to both strengthen domestic criminal law doctrines and to better understand international criminal law. Part III discusses some of the obstacles that must be overcome in order to engage in meaningful comparative analysis. Finally, Part IV engages in a comparative analysis of attempt liability and mens rea in order to illustrate how to do comparative criminal law and the benefits that might be reaped from doing so.

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  General Defences to Criminal Liability in the United States

  Luis E. Chiesa

  Published as Chapter 23 in General Defences in Criminal Law: Domestic and Comparative Perspectives, Alan Reed, Michael Bohlander, eds.

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  United States of America

  Luis E. Chiesa

  Published as Chapter 23 in General Defences in Criminal Law: Domestic and Comparative Perspectives, Alan Reed, Michael Bohlander, Nicola Wake & Emma Smith, eds.

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  The Role of Health and Mental Health Professionals in the Capital Punishment Process

  Charles Patrick Ewing and Steven K. Erickson

  Published as Chapter 22 in America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, Third Edition, James R. Acker, Robert M. Bohm & Charles S. Lanier, eds.

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  Why Research Universities Should Support and Foster Teaching Excellence

  Lucinda M. Finley

  Published in Effective Teaching at the College and University Level in India, J. Adsit & P. Jalote, eds.

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  Buddhism and Law in Tibet

  Rebecca Redwood French

  Published as Chapter 17 in Buddhism and Law: An Introduction, Rebecca Redwood French & Mark A. Nathan, eds.

  The Tibetan plateau is an immense high-altitude desert that, except for a few larger towns, was very sparsely populated with agriculturalists, nomadic herders, and merchant traders prior to 1960. The small population and minimal urbanization are the most important distinguishing features of this Buddhist country because concentrated populations are commonly connected to the development of government administration, law, and intellectual production. Despite this, Tibetan culture is known for its long history of enormous production of literary, scholarly, and religious works. Books on Buddhism and other topics from the five traditional classifications of knowledge in Tibet – arts and crafts, medicine, language, logic and Buddhism – were written and printed throughout much of Tibetan history.

  When discussing the relationship between law and Buddhism in Tibet, the number of topics and the many historical twists and turns are daunting given the long history, the growth in Tibetan scholarship, and the rich textual resources available. As it is not possible to cover all of Tibetan legal history, this essay will concentrate on four distinct periods, providing a brief political history followed by a discussion of law during each period: (1) the Empire period (c. 600–850), which is the origin of many of the original customary law practices that were codified over the centuries; (2) the First Patron-Priest period (c. 1264–1350) in which a particular political formation, “the patron-priest,” resulted in the interweaving of Buddhist principles with legal and political institutions into a “Buddhist government”; (3) the Law Code Drafting period (c. 1618–1705) in which the law codes were developed and took on a very specific form and shape that included Buddhist elements in the prologue, factoring, and forms of reasoning; and (4) the 1940s in Tibet, the period before the Chinese takeover, in which we can look at the daily practice of law as it blends ordinary bureaucratic decision-making with a continuous thread of customary practices from early times and embedded Buddhist concepts

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  Introducing Buddhism and Law

  Rebecca Redwood French and Mark A. Nathan

  Published as the introduction to Buddhism and Law: An Introduction, Rebecca Redwood French & Mark A. Nathan, eds.

  Some edited volumes are self-explanatory and others need a substantial introduction to the material; the latter is the case with this volume. While the title is intriguing, many readers will need a guidebook to explain much of what they are encountering here. And it is well worth the effort as the material is some of the most exciting and unorthodox both on legal systems and in Buddhist Studies. Therefore, the task of this introduction to the volume is to provide readers with a road map to define the object of study, and to offer ways to think about the field of Buddhism and Law.

  This introduction is divided into three main sections: Buddhism, Law, and Buddhism and Law. The first, Buddhism, presents a brief account of the life of the Buddha before turning to an examination of dharma, a fundamental term in Buddhism that has long been translated as law. A discussion of Buddhist monasticism and some of the misconceptions that have surrounded the place of the monastic community in society comes next, followed by a consideration of the Vinaya, the canonical Buddhist law codes that have served to regulate the religious life of Buddhist monasteries. Buddhist traditions also possess a wealth of other legal texts and materials, most of which reflect attempts to devise supplementary rules and regulations that fit local conditions, and these are introduced last

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  The Trans-Pacific Partnership Agreement and Development

  Meredith Kolsky Lewis

  Published as Chapter 3 in Trade Liberalisation and International Co-operation: a Legal Analysis of the Trans-Pacific Partnership Agreement, Tania Voon, ed.