Contributions to Books

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  Use of conservation easements by local governments

  Jessica Owley

  Published as Chapter 12 in Greening Local Government: Legal Strategies for Promoting Sustainability, Efficiency, and Fiscal Savings, Keth H. Hirokawa & Patricia E. Salkin, eds.

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  Discipline of Students With Disabilities Attending Public Schools in New York State

  Melinda Saran and Kathleen E. Surgalla

  Published as Chapter 5 in Disability Law and Practice -- Book One: Special Education, Assistive Technology and Vocational Rehabilitation, Nancy Maurer & Simeon Goldman, eds.

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  Critical Legal Studies

  John Henry Schlegel

  Published as Chapter 27 in A Companion to American Legal History, Sally E. Hadden & Alfred L. Brophy, eds.

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  The Culture of Financial Institutions: The Institution of Political Economy

  David A. Westbrook

  Published as Chapter 1 in Integrity, Risk and Accountability in Capital Markets: Regulating Culture, Justin O'Brien & George Gilligan, eds.

  The 19th century legal historian Henry Maine famously defined progress, and by extension, liberal modernity, as the substitution of relations based on status (especially family and title), to relations based on contract, especially trade and employment. The article suggests that Maine's assertion, however comforting as a political matter, simply does not hold with regard to the credit relations central to contemporary society. Credit transactions, even retail transactions, are based on trust and interlocking webs of obligation across agents (until recently called, in the law, servants). In short, the contemporary economy may be imagined in neo-feudal as well as neo-liberal terms. In light of the nature of contemporary finance, as well as rising and at present intractable inequality, a neo-feudal imagination may indeed seem more apposite. A neo-feudal imagination of finance implies "custodial regulation" of financial regulation: privilege and power (inequality) is recognized, but accompanied by personal obligation. The public/private distinction is thus largely effaced. In this view, the crisis of politically significant institutions should lead to the personal ruin of managers even when government intervention is deemed necessary. Conversely, the end of a crisis should not signal that those who run institutions on which society depends may claim to be private citizens. Viewed as a problem of leadership, substantive financial regulation is achieved through negotiation among various elites as to what constitutes prudent action within, a financial world far too complex to be modeled by rules. Thus the indeterminacy (unworkability) of contemporary financial regulation is determined (resolved) through the sorts of conversations that contemporary anthropologists call "paraethnographic." Whether or not this can work is open to serious question.

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  Law and Literature

  Guyora Binder

  Published in Contemporary Literary and Cultural Theory: The Johns Hopkins Guide, Michael Groden, Martin Kreiswirth & Imre Szeman, eds.

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  Zootopia: Utopia and Dystopia in the Zoological Garden

  Irus Braverman

  Published in Earth Perfect? Utopia, Nature, and the Garden, Annette Giesecle & Naomi Jacobs, eds.

  In this essay I coin the term 'zootopia' to express the utopian and the dystopian impulses at work at the zoo and to allude to their tightly intertwined nature. The essay's first section explores zootopia as a paradise, a place where people live in harmony with a romanticized nature. Simultaneously, zootopia is also a rational project that involves careful planning and detailed control over both animals and their habitat. Finally, the zoo is a theme park: a garden for human entertainment and consumption. In order to survive, the zoo must sell tickets, animal figurines and sponsorships, crackers for feeding the elephants, giraffe art, and the like. Ultimately, the zoo's presentation of nature is utopian, in the sense that it confirms current ideals and makes room for hope about nature's future. However, the awe and amusement that this visitor experiences at the utopian zoo are often overlaid with the fear and guilt implied by the dystopian message that is also present in this space.

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  Scientists at the Bar: The Professional World of Patent Lawyers

  John M. Conley and Lynn M. Mather

  Published as Chapter 16 in Lawyers in Practice: Ethical Decision Making in Context, Leslie C. Levin & Lynn Mather, eds.

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  Legal Contours of Expert Testimony

  Charles Patrick Ewing

  Published as Chapter 4 in Handbook of Psychology Volume 11, Forensic Psychology, Second Edition, Irving B. Weiner & Randy K. Otto, eds.

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  Achieving a Free Trade Area of the Asia-Pacific: Does the TPP Present the Most Attractive Path?

  Meredith Kolsky Lewis

  Published as Chapter 15 in The Trans-Pacific Partnership : A Quest for a Twenty-First Century Trade Agreement, C.L. Lim, Deborah K. Elms & Patrick Low, eds.

  This chapter examines the prospects for the Trans-Pacific Partnership (TPP) to expand into a Free Trade Area of the Asia-Pacific (FTAAP). It does so by comparing the TPP to other potential models for Asian economic integration, and by identifying what factors might enhance or diminish the possibility of the TPP serving as the FTAAP model.

  First, the chapter briefly traces the history of the TPP and its linkage to a potential FTAAP. Second, it examines other potential models for regional economic integration and discusses the pros and cons of each option for the major economies in the region. Third, it discusses reasons why the TPP might or might not be the preferred model, identifying important factors playing into this calculus.

  The concept of an FTAAP has been bandied about for the past several years. C. Fred Bergsten has been a particularly strong advocate of this idea, espousing the pursuit of the Bogor goals of free trade and investment regimes throughout the Asia-Pacific Economic Cooperation (APEC). APEC initiated a study of the FTAAP concept in 2006, and in 2009 pledged to explore pathways to create an FTAAP. Bergsten’s early writings 3 on the subject assumed the only way an FTAAP could be accomplished would be to take the existing regional FTAs and agreements and combine them into an FTAAP. More recently, however, Bergsten has seized upon the TPP as the basis for an ultimate FTAAP.

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  Priests in the Temple of Justice: The Indian Legal Complex and the Basic Structure Doctrine

  Manoj Mate

  Published as Chapter 3 in Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex, Terence C. Halliday, Lucien Karpik & Malcolm M. Feeley, eds. (2012).

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  Why Context Matters

  Lynn M. Mather and Leslie C. Levin

  Published as Chapter 1 in Lawyers in Practice: Ethical Decision Making in Context, Leslie C. Levin & Lynn Mather, eds.

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  Client Grievances and Lawyer Conduct: The Challenges of Divorce Practice

  Lynn M. Mather and Craig A. McEwen

  Published as Chapter 4 in Lawyers in Practice: Ethical Decision Making in Context, Leslie C. Levin & Lynn Mather, eds.

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  The Multidimensional Turn: Revisiting Progressive Black Masculinities

  Athena D. Mutua

  Published as Chapter 3 in Masculinities and the Law: A Multidimensional Approach, Frank Rudy Cooper & Ann C. McGinley, eds.

  The original project on progressive black masculinities engaged multidimensional theory to assess whether black men lacked access to patriarchal privileges as nationalist scholars asserted or whether black men were privileged by gender and oppressed by race as certain interpretations of intersectionality theory maintained. Multidimensionality theory suggested that in some contexts black men were privileged by gender in relation to black women, and in other contexts they were oppressed by gendered racism as blackmen – one word – and one multidimensional entity. In this essay I ground the project more deeply in multidimensionality theory. I do so because I believe the multidimensional turn in intersectionality theory better situates masculine identities and practices within the matrix of socially constructed hierarchies, better explains the synergistic interplay between categories such as gender and race, and better explains the role context plays as well as demonstrating its necessity in understanding a particular interaction. As such, it is a useful tool in explaining and clarifying the gendered racial dynamics present in such phenomenon as lynching and racial profiling, as well as in understanding the justifications for the project of progressive black masculinities.

  Part I of this essay defines progressive black masculinities. It also briefly summarizes the arguments that support the concept and which seek to encourage black men’s engagement with it. Part II discusses the development of the multidimensional turn in intersectionality theory in relation to masculinities studies. Part III turns to masculinities and hegemonic masculinity theory situating the insights about the patriarchal gender system and the ranking of masculinities within a multidimensionality framework. Part IV then briefly makes the argument for progressive masculinities, drawing on both multidimensionality and masculinities theory.

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  Tribes as conservation easement holders: is a partial property interest better than none?

  Jessica Owley

  Published as Chapter 8 in Tribes, Land, and the Environment, Sarah Krakoff & Ezra Rosser.

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  Preface (Prefácio em inglês)

  John Henry Schlegel

  Published in Ensino jurídico e teoria do direito nos EUA, Daniel Brantes Ferrera, ed.

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  Importing Democracy: Promoting Participatory Decision Making in Russian Forest Communities

  Maria Tysiachniouk and Errol E. Meidinger

  Published in Environmental Democracy Facing Uncertainty, Cécilia Claeys & Marie Jacqué, eds.

  This paper describes how the World Wildlife Fund for Nature (WWF) jump-started democratic institutions in Russian rural communities to create a basis for social, environmental, and economic modernization within the Russian forestry sector. In Russia’s post-soviet markets and institutions, a host of multinational companies and large transnational environmental organizations sought to promote the restructuring of Russia’s legal and economic infrastructure and active subsidiaries in Russia. In order for modern forestry approaches to be imported, management practices that had developed in the West needed to be adapted to Russia’s unique context, which led forestry holdings in Northwestern Russia to become involved in Forest Stewardship Council (FSC) certification. Due to this involvement with the FSC, community participation should have increased considerably as well. However, civil society organizations were limited in villages where there was no pre-existing tradition of acting as real stakeholders in the surrounding forests. This paper describes how networks, local communities, and cultural understandings (“social imaginaries”) are involved in instituting more democratic management practices in Russian forestry.

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  Further Consideration: Stronger Neighborhoods through City Gardens, Farms and Food

  Lauren Breen

  Published as part of Chapter 6 in Community Economic Development Law: A Text for Engaged Learning, Susan D. Bennett, Brenda Bratton Blom, Louise A. Howells, Deborah S. Kenn, eds.

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  La Mignonette

  Luis E. Chiesa

  Published in Casos Que Hicieron Doctrina en Derecho Penal, Pablo Sanchez Ostiz, ed.

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  Climate Change in Wetland Ecosystems: Meeting the Needs and Welfare of the People and the Planet

  Kim Diana Connolly

  Published in Climate Change: A Reader, William H. Rodgers, Jr., Michael Robinson-Dorn, Jennifer K. Barcelos & Anna T. Moritz, eds.

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  Kanbanyaiphiset ruang lokaphiwat lae nitisamnük [Commencement Lecture on Globalization and Legal Consciousness]

  David M. Engel

  Published in Raphiphattanasak 2554.

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  "The Spirits Were Always Watching": Buddhism, Secular Law, and Social Change in Thailand

  David M. Engel

  Published as Chapter 12 in After Secular Law, Winnifred Fallers Sullivan, Robert A. Yelle & Mateo Taussig-Rubbo, eds.

  This chapter provides a counter-example to the usual story of legal secularization and modernization. It suggests that the enactment of a secular law code in a non-European setting can interact in unexpected ways with local religious traditions and customary law and can ultimately produce a widespread rejection of liberal legalism.

  Legal modernization in Thailand during the early Twentieth Century brought the semi-autonomous Lanna region under the control of the emergent Thai state (Then known as Siam). Thai leaders sought to suppress a vibrant Lanna legal tradition that linked village-level customary practices to the formal laws of the Lanna princes. In this tradition, legal concepts and practices were closely connected to a distinctive form of Buddhism that incorporated non-Buddhist elements associated with spirit worship. When the Thai state adopted a European-style civil code, it aimed to shatter these connections between law and religion and curb local traditions that might challenge state supremacy. Instead, customary legal beliefs and practices were driven underground and continued to shape the behavior of potential litigants, lawyers, and judges in ways that could not be openly acknowledged. Only in recent years, with the disruptions and dislocations caused by global influences, have Lanna legal and religious practices begun to fade. Yet this recent development has not brought a greater acceptance of secular legalism but rather a new form of Buddhism that views law and religion as inherently oppositional. Focusing on injury cases, this analysis shows how religious consciousness can be transformed and strengthened within a modern state, leading to a widespread perception that secular law is contrary to fundamental values and beliefs.

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  Trade Agreements and Regulatory Autonomy: The Effect on National Interests

  Susy Frankel and Meredith Kolsky Lewis

  Published in Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand, Susy Frankel, ed.

  International economic law agreements – including the World Trade Organization (WTO); free trade agreements (FTAs); and bilateral investment treaties (BITs) – can impact regulatory freedom in a number of important ways. Such agreements may include provisions that either mandate or encourage regulatory reform. Reforms may be called for in order to effectuate harmonisation; to facilitate cross-border trade and investment through regulatory cooperation; or merely to comply with newly established international, plurilateral, or bilateral standards. New Zealand’s participation in an array of trading arrangements, therefore, has significant implications for the country’s regulatory autonomy and ability to effect policy decisions. Trade agreements can impact New Zealand’s regulatory options both directly – through provisions in agreements to which New Zealand is a party, and indirectly – as a result of agreements with or between some of New Zealand’s trading partners to which New Zealand is not a party. This indirect impact should not be underestimated. This chapter has three objectives: first, to identify the agreements that may impact upon New Zealand’s regulatory autonomy, both directly and indirectly (Parts II and III of this paper); second, to use the context of consumer interests to provide specific examples of the ways in which trade agreement commitments affect policymaking options (Part IV); and third to discuss empirical and further research that will be conducted in the next project phase with the aim of measuring the effects trade agreements have on New Zealand’s regulatory autonomy in the consumer interests area (Part V). Within the broad category of consumer interests, this project will focus on regulatory regimes that affect food safety/biosecurity; the safety and purchasing of pharmaceuticals and product safety and performance standards.

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  Spain

  Carlos Gómez Jara-Díez and Luis E. Chiesa

  Published in The Handbook of Comparative Criminal Law, Kevin Jon Heller & Markus D. Dubber, eds.

  The essay provides a broad overview of Spanish criminal law with multiple references to existing caselaw and authorities.

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  Simon Greenleaf, Boston Elites, and the Social Meaning and Construction of the Charles River Bridge Case

  Alfred S. Konefsky

  Published in Transformations in American Legal History: Law, Ideology, and Methods: Essays in Honor of Morton J. Horwitz, Volume II, Daniel B. Hamilton & Alfred L. Brophy, eds.

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  The Politics and Indirect Effects of Asymmetrical Bargaining Power in Free Trade Agreements

  Meredith Kolsky Lewis

  Published as Chapter 2 in The Politics of International Economic Law, Tomer Broude, Marc L. Busch & Amelia Proges, eds.

  The World Trade Organization (WTO) has been, and continues to be, shaped in its agreements and institutional foci in significant part by political pressures emanating from its members, particularly those able to wield the most influence. Rather than being an institution with the singular focus of achieving free trade among all members, the WTO comprises a complex set of agreements, many of which represent a politically driven compromise among members as to how to manage trade rather than to liberalize it. Although the state of WTO liberalization reflects positions agreed to in part as a result of political realities, the reach of politics is more significant in the context of bilateral trade negotiations. Indeed, what members cannot accomplish through the WTO they may try to achieve through free trade agreements (FTAs), particularly with politically or economically weaker trade partners. In the case of the United States, FTAs have been used as an opportunity to impose provisions favored by domestic constituents – such as strengthened intellectual property provisions and labor and environment clauses – that it has not been able to get WTO members to agree to collectively in the multilateral forum. A similar phenomenon has occurred with respect to the European Union (EU) and its FTA partners. For countries with less bargaining power, the WTO's multilateral setting provides some buffer from power politics in the form of the consensus decision-making practice and the disproportionate number of developing and least-developed countries.