New Books in Law

Latest Episodes:

Andrew L. Russell, “Open Standards in the Digital Age” (Cambridge UP, 2014) Mar 27, 2014

Show notes

We tend to take for granted that much of the innovation in the technology that we use today, in particular the communication technology, is made possible because of standards. In his book Open Standards and the Digital Age: History, Ideology, and Networks (Cambridge University Press, 2014), Dr. Andrew L. Russell examines standards and the standardization process in technology with an emphasis on standards in information networks. In particular, Russell examines the interdisciplinary historical foundations of openness and open standards by exploring the movement toward standardization in engineering, as well as the communication industry. Paying careful attention to the politics of standardization, Russell’s book considers the ideological foundations of openness, as well as the rhetoric surrounding this ideology. Notable also is the consideration of standardization as a critique of previous ideology and a rejection of centralized control.

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Arica L. Coleman, “That the Blood Stay Pure” (Indiana UP, 2014) Mar 18, 2014

Show notes

Arica Coleman did not start out to write a legal history of “the one-drop rule,” but as she began exploring the relationship between African American and Native peoples of Virginia, she unraveled the story of how the law created a racial divide that the Civil Rights movement has never eroded. Virginia’s miscegenation laws, from the law of hypo-descent to the Racial Integrity Act, are burned into the hearts and culture of Virginians, white, black and Indian.

That the Blood Stay Pure: African Americans, Native Americans, and the Predicament of Race and Identity in Virginia (Indiana University Press, 2014) demonstrates how people continue to insist on racial discrimination and racial purity even though the legal barriers have been lifted and the biological imperatives of “blood purity” have been discredited. Dr. Coleman traces the origins the one-drop rule–that one African American ancestor made a person “colored”–from the days of slavery to the present. She shows how Indians came to disavow their African American descent in the wake of the Virginia racial purity statutes, and how the Bureau of Indian Affairs process continues to perpetuate a fear of admitting racial mixing. She also reveals how one of the most famous Civil Rights cases of our time, Loving v. Virginia, is not about what everyone thinks; it is not, she argues, about the right of blacks and whites to marry.

Dr. Arica L. Coleman is Assistant Professor of Black American Studies at the University of Delaware and a lecturer for the Center for Africana Studies at Johns Hopkins University. She has a four-year appointment to the Organization of American Historians Alana committee, which focuses on the status of African American, Latino/Latina American, Native American and Asian American histories and historians. Dr. Coleman has lent her expertise on the history and politics of race and identity formation to the Washington Post, Indian Country Today and most recently NPR’s “Another View,” a weekly program with a focus on contemporary African American issues.

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Odette Lienau, “Rethinking Sovereign Debt” (Harvard UP, 2014) Mar 09, 2014

Show notes

In 1927 Russian-American legal theorist Alexander Sack introduced the doctrine of “odious debt.” Sack argued that a state’s debt is “odious” and should not be transferable to successor governments after a revolution, if it was incurred without the consent of the people; and not for their benefit.

This doctrine has largely been rejected, with a firm presumption of “sovereign continuity” emerging instead: post-revolutionary governments must repay sovereign debt even if it was incurred to cover the personal expenses of plutocrats. If they fail to do so, their credit reputation is harmed. As Odette Lienau explains in a striking line, “we can now imagine prosecuting the leaders of a fallen regime for crimes against a state’s population while simultaneously asking that population to acknowledge and repay the fallen regime’s debts.”

In Rethinking Sovereign Debt: Politics, Reputation, and Legitimacy in Modern Finance (Harvard University Press, 2014), Lienau unfolds the historical conditions from which this seeming inconsistency emerged. Seamlessly moving between case studies from the early 20th century to the present, Lienau discusses several different versions of this puzzle. Ultimately, Lienau ends up rejecting “sovereign continuity,” and arguing for the recognition of “principled default.”

With revolutions and uprisings across the Middle East, and in Ukraine, this book’s argument will likely provoke lively discussion among lawyers, economists, political theorists, and historians. But lay people should ideally engage with the ideas as well. The book gives an extraordinary point of access into what is at stake in the work of enormous international organizations, such as the World Bank.

*Photo by Frank DiMeo

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Ahmad Atif Ahmad, “The Fatigue of the SharÄ«’a” (Palgrave, 2012) Mar 01, 2014

Show notes

In the book, The Fatigue of the SharÄ«’a (Palgrave, 2012), Ahmad Atif Ahmad explores a centuries-old debate about the permanence, or impermanence, of God’s law, and guidance, in the lives of Muslims. Could God’s guidance simply cease to be accessible at some point? Has such a “fatigue” already taken place? If so, how could one know for sure? What kinds of Muslims, and non-Muslims, have contributed to this debate? Ahmad ambitiously tackles these questions, and many more, in his meticulously researched and provocative monograph. In order to interrogate his topic, he surveys the many camps of the debate and also defines and problematizes key words such as sharÄ«’a, ijtihÄd, and madhhab. Although the text relies on a familiarity with the Islamic legal tradition, Ahmad’s style of writing, which constantly asks readers to reflect on key questions, allows even the uninitiated to benefit from and reflect on what it could mean for God’s guidance to fatigue. As a result of recounting competing angles of the debate, Ahmad leaves with the reader with enduring questions, rather than simple answers, regarding how or if the sharÄ«’a will indeed come to an end. If the legal schools, for example, arose at different times and in different contexts, why would they all meet a common future? As political struggles in the Middle East, North Africa, and the greater Muslim world continue, Ahmad’s timely book will likely interest not only Islamic studies scholars and legal historians, but also journalists, policy makers, and political scientists.

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Sara Bannerman, “The Struggle for Canadian Copyright: Imperialism to Internationalism, 1842-1971” Feb 11, 2014

Show notes

In The Struggle for Canadian Copyright: Imperialism to Internationalism, 1842-1971, Sara Bannerman narrates the complex story of Canada’s copyright policy since the mid-19th century. The book details the country’s halting attempts to craft a copyright regime responsive both to its position as a net importer of published work and to its peculiar political geography as a British dominion bordering the United States. Bannerman charts Canada’s early, largely unsuccessful effort to craft a less restrictive policy in the run up to, and aftermath of, the 1886 Berne Convention-the multilateral agreement that established the enduring framework for the international copyright system. The main obstacle, in the 19th and early 20th centuries, was Britain’s insistence on a uniform and Berne-friendly policy throughout the empire. Even as those imperial constraints fell away over the first half of the 20th century, Canada increasingly aligned with powerful net exporters like France and Britain–in large part, Bannerman shows, to strengthen the country’s image as a model international citizen. The Struggle for Canadian Copyright is a story of constraint–the country’s copyright independence was never won–but Bannerman’s account also highlights the historical contingency of the restrictive norms that dominate international IP policy. A companion website includes archival documents and other materials.

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Joseph Carens, “The Ethics of Immigration” (Oxford UP, 2013) Feb 01, 2014

Show notes

It is commonly assumed that states have a right to broad discretionary control over immigration, and that they may decide almost in any way they choose, who may stay within the territory and who must leave. But even supposing that there is such a right, we may ask the decidedly moral question about how it may be exercised. And this query calls us to try to bring our views about the ethics of immigration into equilibrium with our other moral convictions about citizenship, liberty, and equality. Can our common views and practices concerning immigration be rendered consistent with these deeper commitments?

In The Ethics of Immigration (Oxford University Press, 2013), Joseph Carens argues that our common commitment to democratic principles requires us to revise much of our thinking about immigration. Beginning with the uncontroversial practice of granting citizenship immediately to those born within a country’s territory, Carens argues that claims to social membership and thus to citizenship strengthen as individuals stay in a state; consequently, there is a point at which not extending citizenship to those living within a state’s borders is grossly immoral, even for those who have settled without the state’s permission. Carens’ arguments about the moral constraints on the state’s rights to exclude eventuate in an argument in favor of open borders.

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Patrick Weil, “The Sovereign Citizen: Denaturalization and the Origins of the American Republic” (University of Pennsylvania Press, 2013) Jan 28, 2014

Show notes

Patrick Weil is the author of The Sovereign Citizen: Denaturalization and the Origins of the American Republic (University of Pennsylvania Press, 2013). He is a visiting Professor of Law at Yale Law School and a senior research fellow at the French National Research Center in the University of Paris 1, Pantheon-Sorbonne. The Sovereign Citizen is an historical study of denaturalization in the United States. It tells the story of what Weil believes is a revolution in the concept of citizenship, through exhaustive archival research. But is also a story about the actors that have made law what it is – immigrants, political radicals, criminal defense lawyers, bureaucrats, and judges.

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Jay Wexler, “The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions (Beacon, 2012) Jan 23, 2014

Show notes

Boston University School of Law Professor Jay Wexler offers readers an entertaining and enlightening tour through a “constitutional zoo” of ten strange-yet-important provisions of the Constitution of the United States in The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions (Beacon, 2012).

As the nation’s foremost scholar of Supreme Court laughter (he could claim he invented the burgeoning field), Professor Wexler proves in this book that he is not just a critic of legal humor, Professor Wexler is a master himself. On the serious side, the work succeeds in using ten oft-forgotten constitutional provisions as a means of illustrating how contemporary problems are imbued with constitutional issues.

Inspired by his time at the Justice Department’s Office of Legal Counsel providing legal advice to the Executive Branch, Professor Wexler’s book will delight both the most seasoned legal veterans and even those whose last brush with the Constitution was in high school. Perhaps due to Professor Wexler’s extensive experience in teaching Administrative Law, as well as his experience in the Executive Branch, the book would serve as an excellent preface for those law students who plan to take Administrative Law.

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Samuel Moyn, “The Last Utopia: Human Rights in History” (Harvard UP, 2010) Jan 14, 2014

Show notes

The Last Utopia: Human Rights in History (Harvard University Press 2010) takes the reader on a sweeping journey through the history of international law from the ancient world to the present in search for an answer to the question: where did human rights come from? The book’s author, Columbia University intellectual historian Samuel Moyn examines, in turn, Enlightenment humanism, socialist internationalism, horror at twentieth-century genocide, anti-colonialism, and the civil rights movement. But he concludes that these were not sufficient individually or collectively to account for the emergence this key term of our contemporary political vocabulary. Human rights has, as Moyn tells us in this interview, a more recent and surprising vintage.

I have never read a book that devoted so much space to where something wasn’t and to why it wasn’t there. Yet in Moyn’s explanation of the non-existence of human rights until its breakthrough moment in the 1970s, we learn a great deal not only about the importance of the nation-state to the conception of individual rights, but about the nature of historical change.

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Ahmed El Shamsy, “The Canonization of Islamic Law: A Social and Intellectual History” (Cambridge UP, 2013) Jan 10, 2014

Show notes

In his brilliant new book, The Canonization of Islamic Law: A Social and Intellectual History (Cambridge UP, 2013), Ahmed El Shamsy, Assistant Professor of Islamic Studies at the University of Chicago, explores the question of how the discursive tradition of Islamic law was canonized during the eighth and ninth centuries CE. While focusing on the religious thought of the towering Muslim jurist Muhammad b. Idris al-Shafi’i (d. 820) and the intellectual and social milieu in which he wrote, El Shamsy presents a fascinating narrative of the transformation of the Muslim legal tradition in early Islam. He convincingly argues that through al-Shafi’i’s intervention, a previously mimetic model of Islamic law inseparable from communal practice made way for a more systematic hermeneutical enterprise enshrined in a clearly defined scriptural canon. Through a rich and multilayered analysis, El Shamsy shiningly demonstrates how and why this process of canonization came about. Written in a remarkably lucid fashion, this groundbreaking study will delight and benefit specialists and non-specialists alike. In our conversation, we talked about the shift from oral to written culture in early Islam, the contrast between the normative projects of Malik and al-Shafi’i, al-Shafi’i’s theory of language, the social and political reasons for the success of his legal theory, and the transmission of al-Shafi’i’s thought by his students.

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