New Books in Law

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Joshua Fershee, “Energy Law: A Context and Practice Casebook” (Carolina Academic Press, 2014) Oct 13, 2014

Show notes

Energy Law: A Context and Practice Casebook (Carolina Academic Press, 2014) by Joshua Fershee is a new casebook designed to better prepare students for practice than traditional methods of legal education. In this interview we discuss a brief history of energy law and delve into some of the topics covered in the book including: economic regulations and market structures, climate change law, and the business of energy law.

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Susan Haack, “Evidence Matters: Science, Proof, and Truth in the Law” (Cambridge UP, 2014) Oct 01, 2014

Show notes

Our legal systems are rooted in rules and procedures concerning the burden of proof, the weighing of evidence, the reliability and admissibility of testimony, among much else. It seems obvious, then, that the law is in large part an epistemological enterprise. And yet when one looks at the ways in which judges have wielded epistemological concepts, there is plenty of room for concern.

In Evidence Matters: Science, Proof, and Truth in the Law (Cambridge University Press, 2014), Susan Haack brings her skill as an epistemologist to bear on a series of tangles concerning the legal concepts of proof, evidence, and reliability, especially as they apply in a series of notorious toxic tort cases. Along the way, she exposes several philosophical confusions in the law’s current understanding of the epistemological concepts it wields, and shows how her own distinctive epistemology–Foundherentism–can be useful to the law.

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Guy Chet, “The Ocean is a Wilderness: Atlantic Piracy and the Limits of State Authority, 1688-1856” (U of Massachusetts Press, 2014) Sep 22, 2014

Show notes

Guy Chet, Associate Professor of early American and military history at the University of North Texas, in his book The Ocean is a Wilderness: Atlantic Piracy and the Limits of State Authority, 1688-1856 (University of Massachusetts Press, 2014) makes a well-crafted argument for the persistence of Atlantic piracy in the eighteenth and nineteenth centuries, after the age of Blackbeard and Captain Kid. He asserts that piracy was not abruptly stamped out by the royal navy but remained normal rather than exceptional for a long time past the 1730s.

The end of piracy is described in the traditional historical narrative as a speedy decline due to the central state’s extension of its authority into the Atlantic frontier and its monopolization of violence. Chet, following methodology established by legal and borderland historians, critiques this assessment pointing out that frontier conditions are sustainable for long periods of time. He fleshes out through each section of his work why the monopoly on violence pronounced in statutory law was not accepted as legitimate or seen in reality in peripheral communities. Despite the central state’s use of army, navy, courts and gallows to extend authority to the frontier, Atlantic piracy waned only slowly in the face of these delegitimizing efforts.

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Jeremy Lipschultz, “Social Media Communication: Concepts, Practices, Data, Law, and Ethics” (Routledge, 2014) Sep 07, 2014

Show notes

Social media is a phenomenon that continues to grow and attract much attention in the form of consternation, commentary, criticism and scholarly research. Any attempt at truly understanding social media communication practices and tools requires interdisciplinary analysis, the examination of the technology from the varying perspectives of the groups of users, developers and experts with respect to the issues surrounding it. It also should include a look at the changes social media has and continues to bring to various fields, particularly with respect to professional communication. Jeremy Lipschultz, Isaacson Professor in the School of Communication at the University of Nebraska at Omaha, discusses the impact of social media on various mass communications professions in his new book Social Media Communication: Concepts, Practices, Data, Law, and Ethics (Routledge 2014). In his book, Lipschultz examines the various theories and practices connected to social media communication, and how this emerging form of communication differs from the traditional.

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Ovamir Anjum, “Politics, Law, and Community in Islamic Thought: The Taymiyyan Moment” (Cambridge UP, 2012) Aug 22, 2014

Show notes

In Politics, Law, and Community in Islamic Thought: The Taymiyyan Moment (Cambridge University Press, 2012), Ovamir Anjum explores a timely topic, even though his focus is hundreds of years in the past. In order to present his topic Professor Anjum asks a series of foundational questions, such as: How have Muslims understood ideal government and political theology? What is the role of rulers in those politics? And what does it even mean to talk about “politics” as a category? In Anjum’s words “the relationship between Islam and politics in the classical age can neither be described as a formal divorce nor a honeymoon, but rather a tenuous and unstable separation of spheres of religious authority from political power that was neither justified in theory nor wholeheartedly accepted” (136). The “Taymiyyan Moment,” a rephrasing of the “Machiavellian Moment” comes during the life of the prodigious author, theologian, and jurist Ibn Taymiyya (1263-1328). By honing in on Ibn Taymiyya’s magnum opus, Dar’ Ta’arud al-‘aql wa-l-naql (The Repulsion of Opposing Reason and Revelation)–not a political work, per se, but a theological one–Anjum reflects on, among other things, tensions between “community-centered” and “ruler-centered” visions of politics, and how scholars before Ibn Taymiyya had understood these ideas. Based on meticulous research of primary and secondary sources, Anjum’s monograph will likely encourage new scholarship on the post-classical era, including the impact of Ibn Taymiyya’s ideas on later generations, as well as interest among scholars from a variety of disciplines, ranging from History and Religious Studies, to Political Science and Law.

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Marianne Constable, “Our Word is Our Bond: How Legal Speech Acts” (Stanford UP, 2014) Aug 16, 2014

Show notes

Our Word is Our Bond: How Legal Speech Acts (Stanford UP, 2014), by UC Berkeley Professor of Rhetoric Marianne Constable, impels its readers to reassess the dominant methods of considering what is law.

Constable’s study of law is informed by both philosophy and sociology; however, she avoids common approaches employed by both disciplines and instead conducts her legal analysis by searching for directives in the form of J.L. Austin’s “speech acts.”

Her methods suggest that there is more of a connection between law-in-books and law-in-action than typical sociological research has proposed. Law-in-books, she argues, is active because it hears claims and makes claims within the context of a world that changes. An overview of the claims found within legal speech, such as promises, debts and warnings, reveals a dynamic force.

Constable’s way of thinking about law insularly removes it from the debate between natural law and positive law. As the title Our Word is Our Bond suggests, the work seeks to show that legal language commits us. These commitments come directly from law’s speech acts, thus her theory avoids principles derived either from a sovereign or God.

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Bruce Ackerman, “We the People, Volume 3: The Civil Rights Revolution” (Harvard UP, 2013) Aug 02, 2014

Show notes

Bruce Ackerman is the Sterling Professor of Law and Political Science at Yale University. His book, We the People, Volume 3: The Civil Rights Revolution (Harvard UP, 2013) fills out the constitutional history of America’s “Second Reconstruction” period and makes a powerful argument that traditional understandings of the constitutional canon must be expanded to accurately reflect the American lawmaking process.

The official constitutional canon is composed of the 1787 Constitution and the formal amendments to this document. However, Ackerman argues that the Supreme Court should give more deference to an operational canon that includes the landmark statutes, which are the legacy of the civil rights revolution. Ackerman reveals that the leaders of the civil rights movement actively avoided altering the Constitution through an Article V amendment because this method had failed during the first Reconstruction period. Instead, he lays out how they relied on constitution-altering techniques established during the New Deal. The champions of the civil rights movement following these New Deal methods emerged victorious from robust constitutional debates in all three branches. These successes reveal the American people’s broad support for a change to the constitutional status quo, a level of consent much greater than that behind the Reconstruction that produced three Article V amendments and Ackerman asserts even greater than the support underpinning the American Revolution.

Ackerman’s position as a scholar of both law and political science allows him to avoid interpretative pitfalls common to each respective discipline and to use his greater breadth of knowledge to present a wide picture of the civil rights era’s political history. His interdisciplinary interpretation argues for an even greater respect for Brown v. Board of Education’s importance in the movement while simultaneously arguing that lawyers must move away from a court-centric view of the period to be faithful to the collective voice of We the People.

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Michael Bryant, “Eyewitness to Genocide: The Operation Reinhard Death Camp Trials, 1955-1966” (University of Tennessee Press, 2014) Jul 15, 2014

Show notes

My marginal comment, recorded at the end of the chapter on the Belzec trial in Michael Bryant‘s fine new book Eyewitness to Genocide: The Operation Reinhard Death Camp Trials, 1955-1966 (University of Tennessee Press, 2014), is simple: “!!!!” Text speak, to be sure, but it conveys the surprise I felt.

One can ask many questions about the trials of the German guards and administrators of Belzec, Sobibor and Treblinka. Why did it take so long to put them on trial? How did the German public and government respond to the trials? What do the trials say about German memory of the Holocaust?

Bryant answers all of these questions thoughtfully and persuasively. But, the heart of his book is a close study of the prosecution of a few dozen German soldiers, most of whom clearly had dirty hands. He takes us step by step through the process of locating the accused and those who could testify against them, through the complexities of the German legal code, and through the testimony and eventual convictions. And he explains why many of the accused were convicted of lesser crimes, or not convicted at all.

Bryant, trained as both a lawyer and an historian, is uniquely qualified to lead us on this journey. He does so with the verve of someone writing in the true crime genre, integrating life stories of the accused and the courtroom strategies of their trials with a thoughtful analysis of the legal code and culture that shaped their fates.

By the time I finished the book, my initial response had turned into a reluctant understanding. I’m not sure what the right solution is to the problems of transitional justice. But Bryant makes it abundantly clear why these trials turned out in this way, however uncomfortable that might make us.

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Nick Smith, “Justice through Apologies: Remorse, Reform, and Punishment” (Cambridge UP, 2014) Jul 02, 2014

Show notes

Most people say “I’m sorry” a lot. After all, we make a lot of mistakes, most of them minor, so we don’t mind apologizing and expect our apologies to be accepted or at least acknowledged. But how many of our apologies are what might be called “strategic,” that is, designed to do nothing more than placate the person we have wronged and essentially exonerate ourselves? In other word, how many of our apologies are genuine? It’s a good question, but it raises another: what is a genuine apology? Does it involve an admission of guilt, remorse, a promise never to do it (whatever it is) again, compensation for the wrong? That’s a good question too, but it, too, raises a question: how can we tell a strategic apology from a genuine one? Gnashing of teeth? Wailing? Weeping? Statements against interest?

As Nick Smith points out in his insightful Justice through Apologies: Remorse, Reform, and Punishment (Cambridge University Press, 2014), we don’t usually ask any of these questions when giving and taking apologies, and even when we do, our answers don’t make much sense. This thoughtlessness is particularly troublesome when apologies are used or required in high-stakes legal contexts. What can an apology mean when a judge compels a criminal to give one in exchange for a lesser sentence? What can an apology mean when a huge corporation issues one in a civil case knowing full well that doing so will likely reduce the damages it will have to pay? How can an apology be genuine–or even distinguished from a strategic apology–when the apologizer has so much to gain if they apologize and so much to lose if they don’t?

All good questions. Listen in.

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Doron S. Ben-Atar and Richard D. Brown, “Taming Lust: Crimes Against Nature in the Early Republic” (University of Pennsylvania, 2014) Jun 28, 2014

Show notes

Bestiality is more often the subject of jokes than legal cases nowadays, and so it was in late eighteenth-century western New England, when, strangely, two octogenarians were accused in separate towns in the space of a few years. Doron S. Ben-Atar and Richard D. Brown each discovered one case while they were researching other books, but when they began talking to one another, they realized the cases might be at the root of something bigger. Taming Lust: Crimes Against Nature in the Early Republic (University of Pennsylvania Press, 2014) explores two New England accusations of bestiality crimes, the trials, and the death sentences imposed upon the defendants.

In post-revolutionary America, in the Age of Reason, how could two old men face the gallows on charges that seemed more appropriate to the early 1640s? Ben-Atar and Brown unravel the personal, political, and religious entanglements that the cases represent. They provide a history of bestiality and its connection to sodomy or “crimes against nature,” and show the consequences of keeping laws on the books that may have outlived the culture that introduced them. Ben-Atar and Brown examine a struggle between Federalists and evangelicals, on the one hand, against Jeffersonian Republicans and rational religionists on the other, to define morality in the emerging new republic. The book puts the accusation of bestiality squarely in the midst of a cultural cataclysm in America. Taming Lust combines riveting historical narrative with a compelling analysis. Even the footnotes are not to be missed. These two isolated cases help us understand not only the local history of western New England, but the national political struggles, the evangelical movement that bridged the New Divinity with the Second Great Awakening, and the transatlantic influences from England and France that so affected the lives of Americans in the 1790s.

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