New Books in Law

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Austin Sarat, “Gruesome Spectacles: Botched Executions and America’s Death Penalty” (Stanford UP, 2014) Jun 18, 2014

Show notes

When we discuss the death penalty we usually ask two questions: 1) should the state be in the business of killing criminals?; and 2) if so, how should the state put their lives to an end? As Austin Sarat shows in his fascinating book Gruesome Spectacles: Botched Executions and America’s Death Penalty (Stanford University Press, 2014), these two questions are intimately related. The reason is pretty simple: if the state can’t find a legally and morally acceptable way to execute malefactors, then perhaps we need to ask seriously whether the state should be killing criminals at all. If the means cannot be found, then the end may well be unachievable.

In Gruesome Spectacles, Sarat analyses hundreds of executions in an attempt to assess the degree to which we can kill criminals in legally and morally acceptable ways. What he discovers is that about three in a hundred American executions over the past century or so have gone badly wrong. Criminals who were supposed to have been put to death in a humane way were strangled, decapitated, set on fire, suffocated, and slowly poisoned. Apparently American authorities—however laudable their intentions—have found it quite difficult, practically speaking, to avoid “cruel and unusual punishment” when executing wrongdoers.

It’s important to note that Gruesome Spectacles is not an anti-death penalty book. Sarat’s presentation of botched executions is balanced by consideration of the horrible crimes for which the ultimate penalty was imposed. What Sarat does–and we should thank him for it–is provide hard evidence on a crucial question: can we, realistically speaking, put criminals to death humanely?

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Olivier Zunz, “Philanthropy in America: A History” (Princeton UP, 2014) Jun 16, 2014

Show notes

Olivier Zunz is the author of Philanthropy in America: A History (Princeton University Press 2014). The paperback addition of the book has recently been published with a new preface from the author. Zunz is Commonwealth Professor of History at the University of Virginia.

The book tracks the origins of philanthropy in America as a pact between the very rich and reformers. This was a movement that began in the Northeast, but then spread to the South where the construction of schools for African American children dominated the philanthropic agenda. The book also unearths the historic legal precedents related to how nonprofit organizations are regulated today, the introduction of tax exemption, and prohibitions on lobbying. In sum, Zunz places philanthropy, big and small, into the center of a conversation about the development of American democratic practices. It is a worthy ready for those interested in American politics, the role of the US in world affairs, and the nonprofit sector.

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Morris B. Hoffman, “The Punisher’s Brain: The Evolution of Judge and Jury” (Cambridge UP, 2014) Jun 11, 2014

Show notes

Why do we feel guilty–and sometimes hurt ourselves–when we harm someone? Why do we become angry–and sometimes violent–when we see other people being harmed? Why do we forgive ourselves and others after a transgression even though “the rules” say we really shouldn’t?

In his fascinating book The Punisher’s Brain: The Evolution of Judge and Jury (Cambridge University Press, 2014), Judge Morris B. Hoffman attempts to answer these questions with reference to evolutionary psychology. As a working judge, Hoffman is in an excellent position to explore the dynamics of our instincts to punish and forgive. We are, he says, evolved to punish “cheaters”–ourselves and others–so as to maintain all-important bonds of trust and cooperation. But we are also evolved not to take punishment too far. When correction becomes too costly, we forgive so as to maintain social solidarity. Listen in to our fascinating discussion.

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Marci A. Hamilton, “God vs. the Gavel: Religion and the Rule of Law” (Cambridge UP, 2014) Jun 07, 2014

Show notes

The constitution guarantees Americans freedom of religious practice and freedom from government interference in the same same. But what does religious liberty mean in practice? Does it mean that the government must permit any religious practice, even one that’s nominally illegal? Clearly not. You can’t shoot someone even if God tells you to. Does it mean, then, that religious liberty is a sort of fiction and that the government can actually closely circumscribe religious practice? Clearly not. The government can’t ban a putatively religious practice just because it’s expedient to do so.

So where’s the line? In God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge University Press, Second Edition, 2014), Marci A. Hamilton argues that it’s shifting rapidly. Traditionally, the government, congress, and courts agreed that though Americans should enjoy extensive religious freedom, that freedom did not include license to do anything the religious might like. A sensible accommodation between church and state had to be made so that both the church and state could do their important work.

According to Hamilton, in recent decades radical religious reformers have mounted a successful campaign to throw the idea of a sensible accommodation out the window. They have expanded the scope of religious liberty and thereby limited the ability of the government to protect citizens generally. In this sense, she says, religion–a force for great social good, in her mind–has been made into an instrument of harm for many Americans. Listen in.

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Cornelia H. Dayton and Sharon V. Salinger, “Robert Love’s Warnings” (University of Pennsylvania Press, 2014) May 21, 2014

Show notes

In early America, the practice of “warning out” was unique to New England, a way for the community to regulate those who might fall into poverty and need assistance from the town or province. Robert Love’s Warnings: Searching for Strangers in Colonial Boston (University of Pennsylvania Press, 2014) is the first book about this forgotten aspect of colonial Massachusetts life since 1911. We perambulate with him around Boston’s streets on the eve of the Revolution. Dayton and Salinger present the legal basis of the warning system and the moral, religious and humanistic motives of those who enforced it.

We interview legal historian Cornelia H. Dayton of the University of Connecticut about the book she wrote with fellow historian Sharon V. Salinger, of the University of California, Irvine. They discovered his “diary,” and from there found warrants and other documents that allowed them to reconstruct his world, as well as the biographies of the sojourners, soldiers, and members of ethnic and religious minorities who were moving throughout the British Atlantic. They provide fresh insights into why people came to Boston and how long they stayed. Professor Dayton explains how she and Salinger provide a fresh, and perhaps controversial, interpretation of the role that warning played in the city’s civic landscape. Robert Love’s Warnings is a comparative legal history as well as social and political history of New England in the decade before the Revolution.

Update (April 26, 2015): Sharon V. Salinger and Cornelia Dayton have received a major book award by the Organization of American Historians (OAH). Their book Robert Love’s Warnings: Searching for Strangers in Colonial Boston (University of Pennsylvania Press, 2014) won the Merle Curti prize for the best book in American social history.

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Lawrence Goldstone, “Birdmen: The Wright Brothers, Glenn Curtiss, and the Battle to Control the Skies” (Ballentine, 2014) May 18, 2014

Show notes

In Birdmen: The Wright Brothers, Glenn Curtiss, and the Battle to Control the Skies (Ballentine Books, 2014), Lawrence Goldstone recounts the discovery and mastery of aviation at the turn of the twentieth century–and all the litigation that ensued. Foremost amongst the legal battles in early aviation was the suits waged between the Wilbur and Orville Wright and Glenn Curtiss. Goldstone offers an in depth view of that struggle.

From the publisher: “While the Wright brothers’ contributions to aviation are so famous as to be legendary, the ruthlessness with which they stifled their competitors remains largely unknown. The feud between the Wright brothers and Glenn Curtiss was a collision of strong, unyielding, profoundly American personalities. On one side was a pair of tenacious siblings who together had solved the centuries-old riddle of powered, heavier-than-air flight. On the other was an audacious young motorcycle racer whose aircraft became synonymous in the public mind with death-defying stunts. For more than a decade, they battled each other in court, at air shows, and in the eyes of the scientific and business communities. At issue were more than just the profits from a patent, but control of the means of innovation in a new age of rapid industrial change. The outcome of this contest of wills would shape the course of aviation history– and take a fearsome toll on the lives and livelihoods of the men involved.”

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Federico Fabbrini, “Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective” (Oxford University Press, 2014) Apr 21, 2014

Show notes

Federico Fabbrini is Assistant Professor of European & Comparative Constitutional Law at Tilburg Law School in the Netherlands. In his new book, entitled Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (Oxford University Press, 2014), Fabbrini analyses the constitutional implications of the highly complex European architecture for the protection of fundamental rights and the interactions between the various European human rights standards.

By innovatively comparing this architecture with the United States Federal System, the book advances an analytical model that systematically explains the dynamics at play within the European multilevel human rights architecture. The book however also goes beyond simple theory and tests the model of challenges and transformations by examining four very interesting and extremely relevant case studies. In the end, a ‘neo-federal’ theory is proposed that is able to frame the dilemmas of ‘identity, equality, and supremacy’ behind this multilevel architecture in Europe.

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Stephen C. Neff’s Justice Among Nations: A History of International Law (Harvard UP, 2014) Apr 13, 2014

Show notes

Stephen C. Neff‘s Justice Among Nations: A History of International Law (Harvard UP, 2014) is a book of breathtaking scope, telling the story of the development of international law from Ancient times to the present. It moves across many different cultures and parts of the world, with the express ambition of being a comprehensive intellectual history of international law. It moves among names that any student of international law will recognize, but also surveys unfamiliar sources and recovers their importance. Neff’s prose is both accessible and elegant. This book will surely become an enormously important resource for scholars and students interested in the field.

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Sean D. Murphy et al., “Litigating War: Mass Civil Injury and the Eritrea-Ethiopia Claims Commission” (Oxford UP, 2013) Apr 06, 2014

Show notes

Professor Sean D. Murphy is the Patricia Roberts Harris Research Professor of Law at George Washington University and co-author of the book Litigating War: Mass Civil Injury and the Eritrea-Ethiopia Claims Commission (Oxford University Press, 2013) with Won Kidane, Associate Professor of Law at the Seattle University Law School, and Thomas R. Snider, an international arbitrator at Greenberg Taurig. Their book goes to the heart and intricacies of the Eritrea-Ethiopia Claims Commission. Its analysis and comprehensiveness is certainly insightful and is a must-read for anyone wanting to learn about the commission and its context. Professor Murphy discusses with us some of the contents of the book, providing details on the war that occasioned the commission, the commission’s establishment, its jurisdiction and other very pertinent issues relating to the commission’s work.

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Ayesha Chaudhry, “Domestic Violence and the Islamic Tradition” (Oxford University Press, 2013) Mar 29, 2014

Show notes

How do people make sense of their scriptures when they do not align with the way they envision these texts? This problem is faced by many contemporary believers and is especially challenging in relation to passages that go against one’s vision of a gender egalitarian cosmology. Ayesha Chaudhry, professor in the Department of Classical, Near Eastern and Religious Studies and the Institute for Gender, Race, Sexuality and Social Justice at the University of British Columbia, examines one such passage from the Qur’an, verse 4:34, which has traditionally been interpreted to give husbands disciplinary rights over their wives, including hitting them. In Domestic Violence and the Islamic Tradition: Ethics, Law, and the Muslim Discourse on Gender (Oxford University Press, 2013) Chaudhry offers a historical genealogy of pre-colonial and post-colonial interpretations of this verse and their implications. Through her presentation she offers portraits of the “Islamic Tradition” and how these visions of authority shape participants’ readings of scripture. In our conversation we discuss the ethics of discipline, idealized cosmologies, marital relationships, legal interpretations, Muhammad’s embodied model, Muslim feminist discourses, effects of colonialism, and the hermeneutical space between modernity and tradition.

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