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  Charles B. Sears Law Library, University at Buffalo School of Law

  Elizabeth G. Adelman and Evviva Weinraub Lajoie

  Published in Organizational Structures of Academic Law Libraries: Past, Present, and Future, Elizabeth Adelman & Jessica de Perio Wittman, eds.

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  Strongmen and Neurotics: Visible Struggle and the Construction of Judicial Ethos

  James A. Gardner

  Published as Chapter 10 in The Rhetoric of Judging Well: The Conflicted Legacy of Justice Anthony M. Kennedy, David A. Frank & Francis J. Mootz III, eds.

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  Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law

  Paul Linden-Retek

  Published as Chapter 13 in Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law, Jan Komárek, ed.

  This chapter critiques Jürgen Habermas’s concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—from the analytic perspective of ‘constitutional imaginaries’, and details the consequences of this critique for the constitutional discourse of the contemporary European judiciary. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to legal principles simpliciter but also to the historical settlement of political conflict those principles reflect. This suggests that the plurality of constitutional imaginaries in the European legal space poses additional difficulties for inspiring civic attachments post-nationally. Second, understanding Habermas’s work in this light opens new avenues for rethinking the interpretive and structural tasks to which Europe’s juridical institutions should be directed. In particular, the chapter proposes more responsive forms of proceduralism able to sustain the reflexivity of constitutional imagination that post-national politics requires.

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  Illiberalism, Human Rights, and Rule of Law: A Kenyan Paradox

  Makau wa Mutua

  Published as Chapter 25 in The Palgrave Handbook of Contemporary Kenya, Wanjala S. Nasong'o, Maurice N. Amutabi & Toyin Falola, eds.

  Hypocrisy is the homage that vice pays to virtue (La Rochefoucauld, 2009). While this appears to be the vox populi of Kenyans—elites and the hoi polloi alike—it is a paradox of the country’s politics. On the one hand, the masses of the people seem to cry out for a democratic state. But on the other hand, they seem to be possessed by a culture of cynicism and incipient fascism (see Cheeseman et al., 2020). The elites swear by the values of liberalism but practice the exact opposite. It is not even the imperfection of the idea. Rather, it is the complete repudiation of those ideals in virtually all facets of national life. The country has been gripped by an orgy of self-cannibalization in which people say one thing but do another. The country’s zeitgeist is a despair of contradictions, most of them debilitating to national interests. What is left is a ruinous landscape on which only evil seems to germinate. How to reconcile the seemingly genuine desire—and often hard-fought struggles—for a progressive, left-of-center, liberal democratic state with deep-seated illiberalism speaks volumes about the apparent inability of the Kenyan post-colonial state to cohere a national character and ethos of democracy (Mutua, 2008). Vertically and horizontally, human rights and the rule of law are on every lip, yet they are observed more in their breach than the observance. As elsewhere, a gene of illiberalism lurks everywhere (Zakaria, 1997: 22).

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  Guide to Bill of Attainder Clauses in Article I, sections 9 and 10

  Matthew J. Steilen

  These are commentaries on the Bill of Attainder Clauses in Article I, sections 9 and 10. Each is 2000 words long. They are forthcoming in the 3d edition of Heritage Guide to the Constitution. Topics covered include the history of English bills of attainder, the meaning of "bill," "notorious," "attainder," and other key terms, bills of attainder passed against loyalists during the American revolution, the Josiah Philips case, the legislative history of the clauses in the Philadelphia Convention, early Supreme Court decisions involving bills of attainder, and the modern doctrine. Inline citations and a short bibliography are included. The author has written several earlier studies of English and American bills of attainder.

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  Academic Brands and Cognitive Dissonance

  Mark Bartholomew

  Published as Chapter 7 in Academic Brands: Distinction in Global Higher Education (Mario Biagioli & Madhavi Sunder, eds., Cambridge University Press, 2022).

  It is hard to reconcile the research university’s supposed reason for being – the reasoned pursuit of knowledge – with its methods for building brand awareness and equity. Just like pitches for other luxury goods, the selling of higher education depends on irrational appeals devoid of information and marketing missives meant to hug the line between legally protected puffery and outright fraud. Although universities have always borrowed from the selling strategies of the commercial sphere, in recent years, there has been a sea change in the prevalence and degree of less-than-truthful content in higher educational self-promotion. How do university constituents – administrators, professors, students – interpret this gap between their institutions’ traditionally understood role and the logic of today’s academic branding strategies? The chapter chronicles the main rationalizations these actors deploy to reduce the tension between academic mission and academic marketing. By telling themselves that their school’s advertising efforts can be quarantined from the university’s larger purpose or actually provide tangible and truthful information to outside audiences or are a necessary evil, university constituents reduce their internal dissonance but fail to confront the realities of academic branding.

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  Amphibious Legal Geographies: Toward Land–Sea Regimes

  Irus Braverman

  This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book discusses the juridical thinking that has enshrined the land/sea divide into contemporary governmental infrastructures, disciplinary traditions, and regulatory apparatuses, and charts the disastrous implications that such a legal fixation on the land/sea binary has wrought on human and other-than-human lifeworlds. As the collection proceeds, a second broad theme emerges, building on the first: when one rethinks the abstraction of law as played out on the ground, the “ground” itself shifts and fundamental divisions between land and sea that serve as the foundations of Western law are undermined. “A first step in this process,” as John Gillis states in his archeological challenge to the Garden of Eden myth, “is to recognize that land and water are opposites but inseparable parts of an ecological continuum”.

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  Citizen Scientists and Conservation in the Anthropocene: From Monitoring to Making Coral

  Irus Braverman

  Published as Chapter 7 in The Nature of Data: Infrastructures, Environments, Politics, Jenny E. Goldstein & Eric Nost, eds.

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  Genetic Freedom of the Seas in the Age of Extractivism: Marine Genetic Resources in Areas Beyond National Jurisdiction

  Irus Braverman

  Areas beyond national jurisdiction are the largest environment on earth and marine genetic resources are its new, and perhaps final, frontier. It is no wonder, then, that the scope and protection of marine genetic resources in this oceanic space have been hotly contested and that a new doctrine for ocean governance has been coined in this context: mare geneticum. This chapter examines different definitions of marine genetic resources debated in the ongoing treaty negotiations over areas beyond national jurisdiction (the BBNJ), the conflicting interests involved, and how the law-science relationship has figured in these debates. Ultimately, many of the debates do not challenge the extractivist mindset, which s, decontextualizes, and recontextualizes ocean life into resources and benefits and that journey from data into information. Drawing on the details of the law-science debate about the scope of marine genetic resources, this chapter calls upon the community of ocean experts, both legal and scientific, to seize the precious opportunity of crafting a new treaty for areas beyond national jurisdiction to challenge the extractivist mindset and to consider an alternative mode of relating to ocean lifeworlds.

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  More-than-One Health, More-than-One Governance

  Irus Braverman

  Published as the introduction to More-than-One Health: Humans, Animals, and the Environment Post-COVID, Irus Braverman, ed.

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  One Health, Surveillance, and the Pandemic Treaty: An Interview with John H. Amuasi

  Irus Braverman

  Published as chapter 4 in More-than-One Health: Humans, Animals, and the Environment Post-COVID, Irus Braverman, ed.

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  Spillover Interfaces from Wuhan to Wall Street: An Interview with Chris Walzer

  Irus Braverman

  Published as chapter 3 in More-than-One Health: Humans, Animals, and the Environment Post-COVID, Irus Braverman, ed.

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  Colombia: Recent History

  Jorge Luis Fabra-Zamora and Andrés Molina Ochoa

  Published in South America, Central America and the Caribbean 2023, Europa Publications, ed. and online at Europa World.

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  Preface

  Rebecca Redwood French

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  Electoral Systems and Conceptions of Politics

  James A. Gardner

  Published as chapter 8 in Comparative Election Law (James A. Gardner, ed., Edward Elgar Publishing, 2022).

  Every democratic society must settle upon some method by which diversity of public opinion may be narrowed and then transformed into concrete, binding, politically legitimate decisions about what the polity should do. In representative democracies, a key step in that process is choosing an electoral system, an institution that plays a critical role in transforming diversity of opinion among the demos into unified, presumptively consensual official policy. Although human ingenuity has devised many possible methods by which a democratic polity can record and calculate public opinion through voting, in today’s world the salient decision tends to boil down to a choice among two families of electoral systems: winner-take-all (WTA) and proportional representation (PR). Today, among the world’s democracies, more than sixty use WTA for elections to at least one national governing institution, and more than forty use PR.

  It is tempting to think of electoral systems as little more than alternative methods for tabulating votes, as interchangeable as jam and marmalade, and thus a matter solely of personal taste. This is false in two ways. First, the seemingly trivial methodologies of recording and tabulating votes in WTA and PR systems rest upon profoundly different conceptual foundations encompassing distinct and incompatible beliefs about the nature of the good, the epistemology of the good, and the nature and function of political representation. Second, the choice between the two methodologies has significant consequences for how politics is practiced and experienced by members of the polity, both locally and nationally, and by their elected representatives. To choose between the two systems is thus to choose not merely between electoral methodologies, but between fundamentally distinct conceptions of politics itself.

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  El misterioso éxito de una democracia federal

  James A. Gardner

  Published in Decisión democrática y forma constitucional, Pablo Riberi & Pedro Salazar Ugarte, eds.

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  Introduction: Election Law—Universal or Particular?

  James A. Gardner

  Published as the introduction to Comparative Election Law (James A. Gardner, ed., Edward Elgar Publishing, 2022).

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  Principios de la libertad de expresión en los Estados Unidos

  James A. Gardner

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  When and Why Do Lawyer Organisations Seek to Influence Law?

  Lynn M. Mather and Leslie C. Levin

  Published as Chapter 15 in Lawyers in 21st-Century Societies: Volume 2: Comparisons and Theories, Richard L Abel, Hilary Sommerlad, Ole Hammerslev & Ulrike Schultz, eds.

  Lawyers seek to influence law through advocacy for individual clients, but also through collective efforts. Such efforts come from informal networks of politically engaged “cause” lawyers and also from formal lawyers’ organizations such as bar associations. This article explores when and why lawyer organizations attempt to influence law, primarily by considering the activities of lawyers’ professional organizations. The article closely examines lawyers’ organizational efforts in seven countries – Brazil, China, Israel, Japan, Kyrgyzstan, Libya, and the United States – and then briefly compares those results to lawmaking attempts in forty other countries, using data from national reports of the legal professions in Volume I of this series. Lawyers’ collective activities to influence law range along a continuum from the most self-interested (efforts to benefit the legal profession or the lawyer organization itself), to those efforts benefitting clients, or courts and the administration of justice, finally to broader efforts to advance human rights or address issues in civil society. The article concludes by identifying key factors that influence the ability of lawyers’ organizations to act on legal issues and also those factors that appear to affect why the organizations do so. The latter discussion draws especially on theories of market control and political liberalism, finding some support for each.

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  The Fraud of John Locke: Subnational Challenges to Democratic Theory

  Makau wa Mutua

  Published as chapter 6 in Comparative Election Law (James A. Gardner, ed., Edward Elgar Publishing, 2022).

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  Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor

  John Henry Schlegel

  Published as Chapter 18 in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries, Shyam Balganesh, Ted Sichelman & Henry Smith, eds.

  Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the years after completion of the job of reordering of the corpus juris in the wake of the demise of the writ system. A Harvard Law School educated westerner who ambivalently wanted to move east from his post at the then decidedly non-elite Stanford Law School, Hohfeld eventually made it to the then decidedly non-elite Yale Law School. His relatively brief career sheds light on both how in the years before World War I legal academics built a professional identity and how they navigated the nascent law school network. It also raises a question of how an analytical legal scholar might have responded to later developments in jurisprudence.

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  Introduction: The Meanings of 'Objectivity'

  Gonzalo Villa-Rosas and Jorge Luis Fabra-Zamora

  In this chapter, the editors propose a new account for answering the question about the meaning of 'objectivity' based on the following steps. First, they determine the normative function of the adjective 'objective'. Second, they criticise those positions that argue that a negative sense of 'objectivity' is sufficient to define it. Third, they explain the reasons why reductivist attempts to define 'objectivity' are untenable. Fourth, they rule out an alternative account of the definition of 'objectivity' inspired by Wittgenstein's notion of family resemblance. Finally, in response to the defects of all these views, they argue for a new account of the definition of 'objectivity' premised on the Aristotelian notion of core-dependent homonymous. This conception allows them to show the fabric that illuminates the various senses of objectivity discussed in the volume, whose content is presented in the second part of this chapter. In the final section of this chapter, the editors sketch some possible lines of research that stem from the thoughts advanced in this collection.

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  Judith Shklar’s Critique of Legalism

  Seyla Benhabib and Paul Linden-Retek

  Published as Chapter 16 in The Cambridge Companion to the Rule of Law, Jens Meierhenrich & Martin Loughlin, eds.

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  Animals

  Irus Braverman

  Published as Chapter 12 in The Routledge Handbook of Law and Society, Mariana Valverde, Kamari M. Clarke, Eve Darian Smith & Prabha Kotiswaran, eds.

  This chapter describes the traditional approaches in animal law of animal welfare and animal rights. Animal rights, as an approach, developed as a critique of the older animal welfare, anti-cruelty approach. Tom Regan, an influential animal rights writer, explained the difference between the welfare and the rights approaches this way: whereas welfarists advocate for larger animal cages, animal rights proponents push for dismantling the cages altogether. Beyond animal welfare and animal rights, new perspectives on non-humans and the law are emerging that are influenced by ecological approaches. Unlike the more traditional western legal systems, such approaches do not draw sharp lines that separate humans and their rights from the rest of nature. Indeed, environmentalists have long-criticized the animal rights movement's exclusive focus on the rights of individual animals who belong to certain species. The evolution of socio-legal thinking on animals and nature has raised fundamental questions about law itself, by exposing the anthropocentric and individualist bias of traditional legal doctrines.

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  Der Jüdische Nationalfonds, Bäume und Öko-Zionismus^TM [The Jewish National Fund, Trees, and Eco-Zionism^TM]

  Irus Braverman

  German Abstract:Bäume gehören ins Reich der Natur, das kaum je mit den Menschen und ihren Machtspielen in Verbindung gebracht wird. Der vorliegende Beitrag erörtert in Kürze die Entwicklung, in deren Verlauf eine natürliche Einheit — hierdie Kiefer — schließlich die zionistische Ideologie verkörperte und beförderte. Für Israel ist die Kiefer fast gleichbedeutend mit dem Jüdischen Nationalfonds (JNF). Nach seiner Gründung aufdem Fünften Zionistenkongress 1901 in Basel übernahm der JNF eine doppelte Aufgabe: Zurn einen erwarb und verteilte er als zentrale Agentur Boden für das jüdische Volk, zum anderen wurde er später vom Staat Israel offiziell mit der Aufforstung des Landes betraut. Trotz wachsender Kritik an JNF-Praktiken, die manche für diskriminierend oder gar rassistisch halten, besteht die Verquickung beider Aufgaben bis heute.

  Im 20. Jahrhundert hat der JNF in lsrael/Palästina über 240 Millionen Bäume auf einer Flache von 920 000 Dunam (92 000 Hektar) gepflanzt. Statt diesen massiven Aufforstungseinsatz zu zentralisieren, nutzte der JNF ihn dazu, Netzwerke aufzubauen und langfristig auf Verwurzelung und Entwurzelung in lsrael/Palästina hinzuwirken. Diese Grundkonzeption machte die ökologische Mission des JNF höchst attraktiv for Juden in aller Welt. Bäume — und speziell Kiefern —, die als natürlich und friedlich ernpfunden wurden, dienten als Waffen zur Enteignung und Vertreibung von Palästinensern, um die jüdische Vorherrschaft über die Landschaft zu sichern.

  English Abstract:Trees belong to the realm of nature, which is typically perceived as indifferent to humans and their power dynamics. This contribution briefly discusses the process through which a natural entity—here the pine tree—has come to embody and promote the Zionist ideology. In the Israeli context, the pine tree has become almost synonymous with the Jewish National Fund (JNF). Established by the Fifth Zionist Congress in Basel in 1901, the JNF has since then been engaged in a double mission: it has served as Israel’s central agency for acquiring and disposing lands for the benefit of the Jewish people and also as Israel’s official afforestation body. Despite the growing criticism toward what some say are discriminatory and even racist practices on the part of the JNF, the interdependency between the two parts of JNF’s mission have not weakened over the years.

  In the course of the twentieth century, the JNF planted over 240 million trees in Israel/Palestine over an area of 920,000 dunam (92,000 hectare). Instead of centralizing this massive tree planting operation, the JNF used it to build networks and a long-term commitment to taking root, and uprooting, in Israel/Palestine. This ground-up organizing accounts for the spectacular appeal of JNF’s ecological mission to Jewish people around the globe. Portrayed as natural and benign, trees—and pines in particular—have been used as weapons for the dispossession and elimination of Palestinians, enabling the Jewish domination of the landscape.