Contributions to Books

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  How and Why Do Lawyers Misbehave? Lawyers, Discipline, and Collegial Control

  Lynn M. Mather

  Published as Chapter 6 in The Paradox of Professionalism: Lawyers and the Possibility of Justice, Scott L. Cummings, ed.

  A fundamental principle of professional labor is that the members of a specialized occupation, as professionals, enjoy autonomy. In sociologist Elliot Freidson's words, professionals “control their own work.” The practitioners themselves decide what constitutes acceptable or appropriate behavior. Professions establish rules and systems of self-regulation to teach and enforce the expected standards of conduct on their members. One way, then, to assess legal professionalism is to ask how well lawyers regulate themselves. The extensive literature on lawyer regulation paints a negative picture.

  The Watergate scandal of the early 1970s brought renewed scrutiny to the legal profession. Although a variety of changes have occurred since then to improve lawyer regulation, numerous problems remain. Law schools now require students to take legal ethics, but such courses generally lack stature and respect. Bar discipline was reorganized in the 1970s to transfer some control from bar associations to agencies of state supreme courts. State discipline agencies in turn have increased their investigation of grievances filed against lawyers. But the vast majority of grievances continue to be dismissed. Much professional discipline is private (such as a warning letter, reprimand, or confidential diversion program), which undermines public trust and confidence in the system. Further, even the most common forms of public sanctions on lawyers (public censure, suspension, or disbarment) are specific to that state, and nothing prevents a sanctioned attorney from seeking bar admission in another state (although they would be required to disclose any prior sanctions).

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  Defending and Developing Critical Feminist Theory as Law Leans Rightward

  Martha T. McCluskey

  Published as Chapter 23 in Transcending the Boundaries of Law: Generations of Feminism and Legal Theory, Martha Albertson Fineman, ed.

  As part of an anthology marking twenty-five years of the Feminism and Legal Theory Project, this essay explores how the rise feminism in law has been accompanied by the simultaneous rise in rightward leaning legal theory and practice. I argue that a critical approach to feminist legal theory is particularly important to engaging and countering the influence of this rightward, often anti-feminist approach to law. I explain how critical analysis upended the double bind of the equal treatment – special treatment debate in earlier years of feminist jurisprudence, leading to a deeper feminist analysis of the extent to which formal equality always rests on implicit substantive ideas of equality. But as that critique helped open the door to fresh discussions of how gender equality could be given meaningful substance, right wing legal theory advanced a two-prong ideological challenge to feminist equality ideals. One prong used seemingly objective economics to challenge substantive equality; the other prong focused on moral arguments against substantive equality. As with the early equal treatment – special treatment dilemma, each of these ideological attacks constructs a double bind for feminist visions of equality, making the choice for equality appear to be a choice ultimately leading to inequality. I show how critical feminist theory can respond to those challenges by uncovering the double standards of economics and morality that underlie these arguments. Further, I show how the rise of right wing law has posed not just ideological but material challenges to feminist legal theory, by changing the institutions of legal academia to make feminist scholarship more difficult. I suggest that these material challenges also underscore the value of a critical approach that challenges the division between theory and practice as well as the structural and political nature of legal theory.

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  From the Welfare State to the Militarized Market: Losing Choices, Controlling Losers

  Martha T. McCluskey

  Published as Chapter 1 in Accumulating Insecurity: Violence and Dispossession in the Making of Everyday Life, Shelley Feldman, Charles Geisler & Gayatri A. Menon, eds.

  Beneath a libertarian surface, free market economic ideas and policies have helped rationalize the strengthening of anti-democratic moral and political fundamentalism. The triumph of market freedom has been accompanied by increasing authoritarian government control in many spheres.

  This chapter explains how a two-step rhetorical move in prevailing economic ideology turns authoritarianism and austerity into the route to freedom and growth. First, free market ideology constructs the increasingly limited and bad economic choices of a declining welfare state and rising plutocracy as an opportunity for enhanced market freedom. Second, free market rhetoric identifies welfare state protections with market losers who threaten others gains, so that security seems to come from controlling rather than supporting those who are most insecure.

  As with the market fundamentalism in Lochner v. New York, constrained choices can be reconstructed as free choices by masking the role of law in coercing and penalizing many peoples’ choices in the interests of privileging some interests. The ideology of market freedom contains a contradiction: if freedom comes from maximizing unconstrained self-interested gain in a harsh world of zero-sum competition, then maximizing one’s freedom can mean imposing the most constraint on others. Market winners will not be those who best make the tough choices necessary to maximize resources within given constraints, but those who create better choices for themselves by mobilizing government power to constrain others. This strategy permeates foreign policy that links military and corporate power to control global competition, and it shapes domestic policies controlling struggling workers and racialized groups through mass incarceration and the criminalization of immigration.

  I connect these authoritarian systems of popular control with the analysis of welfare reform policies of the 1990s, showing how restrictions on poor mothers were rationalized as expanding their “freedom of choice” by making their power to bargain for better choices appear pathological. Finally, I explore this construction of constrained choices as free choice in recent discussions of health care reform and the recent financial market crisis. In the prevailing contemporary debates about regulating financial and health insurance markets, individual freedom appears to come from concentrating rather than democratizing power because of an implicit assumption of a natural moral and political order in which most people deserve little freedom or security. Underneath the rhetoric of free choice lies a ideology of profound choicelessness that denies the freedom and power to use law to respond to insecurity by creating better market choices rather than by constraining market losers.

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  Protect, Respect, Remedy and Participate: ‘New Governance’ Lessons for the Ruggie Framework

  Tara J. Melish and Errol E. Meidinger

  Published as Chapter 12 in The UN Guiding Principles on Business and Human Rights: Foundations and Implementation, Radu Mares, ed.

  This piece addresses the legacy of Harvard Professor John Gerard Ruggie’s work as the first UN Special Representative to the Secretary General (SRSG) on the issue of human rights and transnational corporations, a UN mandate he held from 2005-2011. In it, we interrogate the theoretical underpinnings of the conceptual and policy framework for addressing human rights abuse in the business context that Professor Ruggie has endorsed as SRSG and query whether a conceptually and operationally more effective framework might have been produced had Ruggie and his team approached the task from a new governance or new accountability perspective.

  After situating Ruggie’s work within a sociological institutionalist perspective to system transformation, we describe the key insights offered by new governance approaches for the construction of effective governance and accountability regimes – including those of expanded stakeholder participation, the addition of new kinds of non-traditional processes for holding social actors to account, and the role of orchestration in promoting learning and experimentation across sectors and individual governance entities. Taking these insights into account, we conclude that Ruggie’s “Protect, Respect, and Remedy” framework would have been significantly strengthened by the addition of a fourth “Participation” pillar. That pillar would have acknowledged the critical role that civil society actors play at all levels of global governance today and, importantly, provided a firm normative foundation for such actors to insist on direct participation in the monitoring, enforcement, and implementation of the diverse array of policies and practices that affect the enjoyment of human rights in the business context.

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  A Critique of Rights in Transitional Justice: The African Experience

  Makau wa Mutua

  Published in Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, Gaby Oré Aguilar & Felipe Gómez Isa, eds.

  This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were based, while instructive, is severely constrained for the African landscape. It therefore makes the case for a holistic transitional justice approach that includes not just the revenge and other accountability elements of criminal judicial sanctions, but also focuses on truth, reconciliation, institutional reforms, and reparations. This “ubuntu” approach of “community wholesomeness” is necessary to heal society and restore its balance.”

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  Sexual Orientation and Human Rights: Putting Homophobia on Trial

  Makau wa Mutua

  Published as Chapter 48 in African Sexualities: A Reader, Sylvia Tamale, ed.

  This chapter analyzes and critiques homophobia in Africa and argues that as a matter of general historical practice, Africans did not discriminate against, or socially stigmatize, gays and lesbians. The author contends that modern homophobia in Africa can be traced directly to mission Christianity and Islam whose doctrinal teachings have been used to promote homophobia. The writer takes the view that it is the normative obligation of human rights thinkers and advocates to deconstruct the intellectual bankruptcy of African homophobes and reconstruct a rights discourse that affirms the dignity of homosexuals. It is not un-African to be gay, as some have argued. Nor is there anything racial – or ethnic – about any form of sexual orientation. The author concludes by calling for a struggle based on anti-subordination to combat all forms of human powerlessness, including sexual orientation.

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  "Intolerance of Intolerance" in the Unitarian Controversy: The Theology of Baker v. Fales

  Stephanie L. Phillips

  Published as Chapter 5 in After Secular Law, Winnifred Fallers Sullivan, Robert A. Yelle & Mateo Taussig-Rubbo, eds.

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  The Early Anti-Majoritarian Rationale for Judicial Review

  Robert J. Steinfeld

  Published as Chapter 10 in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz, Volume II, Daniel Hamilton & Alfred Brophy, eds.

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  Introduction

  Winnifred Fallers Sullivan, Robert A. Yelle, and Mateo Taussig-Rubbo

  Published as the introduction to After Secular Law, Winnifred Fallers Sullivan, Robert Yelle & Mateo Taussig-Rubbo, eds.

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  Juicios piratas, CIJ, y justicia de turbas: formas postcoloniales de justicia en Kenia

  Mateo Taussig-Rubbo

  Published as Chapter 4 in Inseguridad, Democracia y El Derecho, Seminario en Latinoamérica de Teoría Constitucional y Política, ed.

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  Sacred Property : Searching for Value in the Rubble of 9/11

  Mateo Taussig-Rubbo

  Published as Chapter 16 in After Secular Law, Winnifred Fallers Sullivan, Robert Yelle & Mateo Taussig-Rubbo, eds.

  Officials and others designated property damaged in the attacks of September 11, 2001 as ‘sacred.’ Some of the objects in question were unremarkable, often nothing more than rubble; some were even considered trash and sent to a landfill; but for those who possessed them they seem to have transcended such banal categorizations. This Chapter seeks to document and analyze the form of value created through destruction and the implicit norms that emerged around the use and circulation of various ‘sacred’ objects. Working through a number of detailed case studies — including the investigation of Federal Bureau of Investigation agents for taking souvenirs from ‘ground zero,’ as well as the litigation initiated by family members seeking to recover the remains of their loved ones from the Fresh Kills garbage dump on Staten Island — this Chapter examines who lays claim to this sacred form of value, to what purposes it is directed, and whether it momentarily overwhelmed the usual legal understandings of property and ownership

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  The Unsacrificeable Subject?

  Mateo Taussig-Rubbo

  Published as Chapter 5 in Who Deserves to Die: Constructing the Executable Subject, Austin Sarat & Karl Shoemaker, eds.

  Formalized, legalized and ritualized killing by political and religious authorities has been central to the maintenance, transformation and regeneration of a vast range of societies. Whether such killing or destruction involved human beings, other animals, or vegetable life, the action very often took the form of a sacrifice to sovereign powers. Sacrifice has thus often been understood as a form of mediation between sovereign and subject. In turn, the rejection of sacrificial action is at the heart of many conceptions of political modernity (for instance those of Rene Girard and Giorgio Agamben). Exploring the nature of the ‘executable subject,’ this Chapter asks whether the killing that takes place as a result of the imposition of the death penalty can be thought of as sacrificial, homicidal, or neither. It argues that sacrifice and the death penalty are in a complicated relation to one another — sacrifice emerges as the unauthorized narrative of some executions, a narrative that the state often struggles to contain. In sum, the rejection and containment of sacrifice plays an important role in the construction of the executable subject.

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  Overview of the Law of Workplace Harassment

  Dianne Avery and Catherine Fisk

  Published in Litigating the Workplace Harassment Case, Marlene K. Heyser, ed.

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  Critical Legal Studies

  Guyora Binder

  Published as Chapter 16 in Companion to Philosophy of Law and Legal Theory, 2d edition, Dennis Patterson, ed.

  This encyclopedia entry reviews the contributions of the Critical Legal Studies movement to the philosophy of law. Critical Legal Studies is most often associated with a controversial claim that all legal doctrine is necessarily indeterminate. This paper reveals that critical scholars have actually propounded two distinct and narrower claims. In the area of analytic jurisprudence, critical legal scholars have criticized liberal rights theory by stressing the economic and social interdependence of legal persons. They therefore argue that the liberal ideals of freedom to act without harming others, and freedom to transact with consenting others, are self-defeating. This “indeterminacy thesis” is a claim that classical liberalism’s aspiration to define spheres of liberty through a regime of rights is not formally realizable. The second claim concerns instrumentalist policy analysis. Critical legal scholars claim that legal standards requiring calculation of the effects of policies on the interests of actors necessarily involve the exercise of normative discretion. Such discretion is required in identifying and aggregating interests, ascribing causal responsibility, and measuring harm. Taken together, these two distinct claims ascribe indeterminacy to a great deal of legal doctrine, but they do not amount to categorical claim that all legal rules are necessarily indeterminate. There is not one “indeterminacy thesis,” but two.

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  Potty Training: Nonhuman Inspection in Public Washrooms

  Irus Braverman

  Published as Chapter 4 in Toilet : Public Restrooms and the Politics of Sharing, Harvey Molotch & Laura Noren, eds.

  The intimacies, privacies, and taboos of the public washroom render it almost inaccessible for direct human inspection. Especially with the decline of attendants and thus loss of a human policeman, nonhuman fixtures are set in place to do the dirty work. Moreover, in the United States, or at least in Buffalo, New York, where I have done fieldwork (and which is typical of American cities in these respects), government officials make only rare appearances on the toilet scene. Consequently, washroom inspection mostly takes place through the design of automated fixtures. Instead of placing a human policeman to make sure that the user flushes after every use – which might constitute an illegal, immoral, and also economically impractical act in the context of the public washroom – a nonhuman thing performs the task. Automated flushing, rinsing, soaping, and drying devices – and recently also automated doors – are the authorities. This spatially mandated public hygiene constitutes morality in practice, one that doesn’t always resonate well with the public. Perhaps unsurprisingly, various forms of human resistance to these impositions have mushroomed here and there: acts of vandalism directed at automated fixtures, their routine avoidance, or strategies of finagling how they operate.

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  What is Tort Reform Really About?

  Lucinda M. Finley

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

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  Wisconsin v. Yoder: An Anthropologist Shapes a Supreme Court Decision

  Rebecca Redwood French

  Published as Chapter 3 in Law and Religion: Cases in Context, Leslie C. Griffin, ed.

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  Ethnography in Ordinary Case Law

  Rebecca Redwood French

  Published as Chapter 5 in Law and Anthropology: Current Legal Issues Volume 12, Michael Freeman & David Napier, eds.

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  Dual Enforcement of Constitutional Norms

  James A. Gardner

  Published as Chapter 1 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.

  Not so very long ago, the story of American constitutional law was easy to understand and even easier to relate. Constitutional law was a story written by two actors: the framers of the U.S. Constitution and the U.S. Supreme Court. The U.S. Constitution provided the content of constitutional law and a Supreme Court told us what it meant. Today, this master narrative has begun to unravel in favor of new one that treats constitutional law as both the object and the venue of a plural and often remarkably inclusive ongoing conversation about the norms by which we live and govern ourselves. The U.S. Supreme Court remains, to be sure, an important and in many ways preeminent voice in the formal pronunciation of American constitutional law. But increasingly the Court is understood to share the stage with a plurality of other voices that speak together - sometimes cooperatively, sometimes competitively - in a collective enterprise of generating, elaborating, and ultimately applying and enforcing constitutional norms.

  This paper, which comprises the introductory chapter of Dual Enforcement of Constitutional Norms: New Frontiers of State Constitutional Law (James A. Gardner and Jim Rossi, eds., Oxford University Press, forthcoming 2010), lays out the book’s principal thesis. Rejecting both the old dual federalism and the newer judicial federalism models, the contributors to this volume understand the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters of Dual Enforcement thus present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance, and our aim for the book is to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.

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  Why Federalism and Constitutional Positivism Don't Mix

  James A. Gardner

  Published as Chapter 4 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.

  This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. However, states in a federal system like ours are far from the kind of autonomous sovereigns contemplated by prevailing theories of national constitutional interpretation. Indeed, a state constitution is the product of processes that transcend the state, and in which both the state and national polities participate. As a result, the interpretation of state constitutions inevitably will require at least some resort to national norms and sources of constitutional meaning.

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  Safety Standards and Indigenous Products: What Role for Traditional Knowledge?

  Meredith Kolsky Lewis

  Published as Chapter 8 in International Economic Law and National Autonomy, Meredith Kolsky Lewis & Susy Frankel, eds.

  Indigenous communities have used native plants as foods and for medicinal purposes for thousands of years. Some of these indigenous products have proven sufficiently popular that individuals outside the indigenous community have sought to consume, purchase and market them. In certain instances, new products have been derived from the indigenous plant and sold outside the indigenous community. In other cases, the indigenous product has been exported in its original form, but utilized in non-traditional ways in the export market. In recent years, various WTO Members have imposed bans and other restrictions on the importation of certain indigenous products on the basis of health and safety concerns. These restrictions tend to be blanket bans on the products as a whole, thus curtailing both the ability to consume indigenous products according to their traditional uses, as well as the adapted versions of such products.

  This chapter uses the example of the recent bans on kava from Pacific Island countries as context to argue that the safety of indigenous products with long histories of traditional use should be evaluated on their own merits. They should not be deemed the equivalent of new products with new uses that have been adapted from the indigenous plant, nor should their safety be assessed in combination with such new products. Bans on indigenous products may well be overbroad if they do not differentiate between traditional (quite possibly safe) uses and new (perhaps not-so-safe) uses.

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  Mills v. Board of Education of Anne Arundel County, and Commonwealth of Pennsylvania v. Brown

  Athena D. Mutua

  Published in Encyclopedia of African American Education, Kofi Lomotey, ed.

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  Law, Critical Race Theory, and Related Scholarship

  Athena D. Mutua

  Published in The Sage Handbook of Race and Ethnic Studies, Patricia Hill Collins & John Solomos, eds.

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  Human Rights: Critiques

  Makau wa Mutua

  Published in The Oxford International Encyclopedia of Peace, Nigel J. Young, ed.

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  On a Possible Instance of the Transmigration of Souls: From American Regal Legalism to American Legal Realism and Back Again

  John Henry Schlegel

  Published in Globalization and the U.S. Law School: Comparative and Cultural Perspectives 1906-2006, Stephen C. Hicks & Kjell Å Modéer, eds.