New Books in Law

Latest Episodes:

Peter Charles Hoffer, "The Supreme Court Footnote: A Surprising History" (NYU Press, 2024) Aug 12, 2024

Show notes

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito’s strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History(NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.”

Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution.

Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics.

Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods.

During the podcast, we mentioned:

Anthony Grafton’s The Footnote: A Curious History (Harvard, 1999)
My NBN conversation with Laura F. Edward’s on her book (The People and their Peace), originalism and domestic violence
The University of Kansas’s Landmark Law Series
Peter’s book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023)
The June 2024 recording of Justices Roberts and Alito on godliness
Susan’s “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021)

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Daniel Kahneman’s Forgotten Legacy: Investigating Exxon-Funded Psychological Research Aug 09, 2024

Show notes

After the unprecedented Exxon Valdez oil spill, a jury of ordinary Alaskans decided that Exxon had to be punished. However, Exxon fought back against their punishment. They did so, in-part, by supporting research that suggested jurors are irrational. This work came from an esteemed group of psychologists, behavioural economists, and legal theorists–including Daniel Kahneman, and Cass Sunstein.

In this three-part series in partnership with Canada’s National Observer, Cited Podcast investigates the forgotten legacy of the Exxon Valdez oil spill and the research that followed. This first part, an Alaskan Nightmare, covers the spill and its immediate effects. Subsequent episodes will run weekly. Subscribe today to ensure you do not miss part #2, 12 Angry Alaskans, and part #3, Damaging Rationality.

This is episode five of Cited Podcast’s returning season, the Rationality Wars. This season tells stories of political and scholarly battles to define rationality and irrationality. For a full list of credits, and for the rest of the episodes, visit the series page.

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Samuel Ely Bagg, "The Dispersion of Power: A Critical Realist Theory of Democracy" (Oxford UP, 2023) Aug 07, 2024

Show notes

This year, many countries around the world, including most of the world's most populous democracies, have consequential nation-wide elections. In many of these elections, democracy itself is at stake. The Dispersion of Power: A Critical Realist Theory of Democracy (Oxford UP, 2023) is an urgent call to rethink centuries of conventional wisdom about what democracy is, why it matters, and how to make it better. Drawing from history, social science, psychology, and critical theory, Samuel Ely Bagg explains why we should shift our orientation away from maximizing collective self-rule and why prevailing strategies of democratic reform often make things worse. Bagg argues we should see democracy as a way of protecting public power from capture - a vision that is at once more realistic and, he argues, more inspiring. The book presents an ambitious and comprehensive engagement with democracy's foundations, principles, and practices. Make no mistake, this work of political theory is profoundly worldly: it bears reading for those interested in politics across time, space, and scale - from the reconstruction US to contemporary Hungary, Turkey and Venezuela.

Samuel Bagg is Assistant Professor in the Department of Political Science at the University of South Carolina, where he teaches courses in political theory. Before coming to UofSC, he taught at the University of Oxford, McGill University, and Duke University, where he received his PhD in 2017.

Vatsal Naresh is a Lecturer in Social Studies at Harvard University. His recent publications include co-edited volumes on Negotiating Democracy and Religious Pluralism (OUP 2021) and Constituent Assemblies (CUP 2018).

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Thomas A. Kerns and Kathleen Dean Moore, "Bearing Witness: The Human Rights Case Against Fracking and Climate Change" (Oregon State UP, 2021) Aug 06, 2024

Show notes

Bringing together philosophy, jurisprudence, and a deep concern for the environment, Bearing Witness: The Human Rights Case Against Fracking and Climate Change offers an inspiring and generative way of thinking about the impacts of anthropogenic climate change. In particular, Thomas Kearns and Kathleen Dean Moore provide readers with insight into the Permanent Peoples' Tribunal as well as the wide-ranging and deeply-felt impacts of fracking, interspersing legal analysis, excerpts of Tribunal testimony, and reflections by climate writers like Winona LaDuke, Robin Wall Kimmerer, and Sandra Steingraber. The book's structure even creatively mirrors that of the Tribunal, offering a collage of insight to any reader interested in human rights and environmental issues—it is a work of deep dedication to thinking critically and deeply about how to face not only the environmental degradation caused by fracking, but also other kinds of harms caused by resource extraction and corporate interests. Rather than slip into climate nihilism, Bearing Witness seeks to name, investigate, and claim rights around environmental harms felt by humans and non-humans alike.

In the face of the increasing, globally-felt impacts of climate change, Kearns and Dean Moore provide us with a human-rights centered framework for engaging with and addressing some of the most pressing questions of our time.

Thomas A. Kearns is an Emeritus Professor of Philosophy at North Seattle College, and is Director of Environment and Human Rights Advisory. In 2015, he helped draft the international Declaration on Human Rights and Climate Change, and in 2018, co-organized the International Tribunal on Human Rights, Fracking and Climate Change, which forms much of the basis for this book. His work is currently centred around facilitating youth climate courts.

Kathleen Dean Moore is a Distinguished Philosophy Professor Emerita at Oregon State University, and longstanding public advocate for climate justice and ecological thriving. Her concern for climate catastrophe led her to leave her academic position to speak and write on environmental crises. Her numerous books and essays—many award-winning—focus on environmental ethics and climate crises, and she has published widely in academic and non-academic fora alike.

Rine Vieth is an incoming FRQSC Postdoctoral Fellow at Université Laval. Interested in how people experience state legal regimes, their research centres around questions of law, migration, gender, and religion.

Further reading and works discussed in this episode:

The Permanent Peoples’ Tribunal on Human Rights, Fracking, and Climate Change
Film by the Spring Creek Project at Oregon State University, Bedrock Rights: A New Foundation for Global Action Against Fracking and Climate Change
Kathleen Dean Moore and Bob Haverluck, Take Heart(OSU Press)
Youth Climate Courts website

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Rachel M. Scott, "Recasting Islamic Law: Religion and the Nation State in Egyptian Constitution Making" (Cornell UP, 2021) Aug 03, 2024

Show notes

By examining the intersection of Islamic law, state law, religion, and culture in the Egyptian nation-building process, Recasting Islamic Law: Religion and the Nation State in Egyptian Constitution Making (Cornell University Press, 2021) highlights how the sharia, when attached to constitutional commitments, is reshaped into modern Islamic state law.

Dr. Rachel M. Scott analyses the complex effects of constitutional commitments to the sharia in the wake of the Egyptian Revolution of 2011. She argues that the sharia is not dismantled by the modern state when it is applied as modern Islamic state law, but rather recast in its service. In showing the particular forms that the sharia takes when it is applied as modern Islamic state law, Scott pushes back against assumptions that introductions of the sharia into modern state law result in either the revival of mediaeval Islam or in its complete transformation. Scott engages with premodern law and with the Ottoman legal legacy on topics concerning Egypt's Coptic community, women's rights, personal status law, and the relationship between religious scholars and the Supreme Constitutional Court. Recasting Islamic Law considers modern Islamic state law's discontinuities and its continuities with premodern sharia.

Thanks to generous funding from Virginia Tech and its participation in TOME (Toward an Open Monograph Ecosystem), the ebook editions of this book are available as Open Access volumes from Cornell Open (cornellpress.cornell.edu/cornell-open) and other repositories.

This interview was conducted by Dr. Miranda Melcher whose new book focuses on post-conflict military integration, understanding treaty negotiation and implementation in civil war contexts, with qualitative analysis of the Angolan and Mozambican civil wars.

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Jessica S. Henry, "Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened" (U California Press, 2021) Jul 31, 2024

Show notes

Jessica Henry's Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened (U California Press, 2021) explores a shocking but all-too-common kind of wrongful conviction: wrongful convictions for crimes that never actually happened. Henry's meticulously-researched book sheds light on how the US criminal justice system makes it possible to convict people of nonexistent crimes. By tracing this issue from first interactions with the police, to encounters with legal professionals, to judges' verdicts, and beyond, Henry's analysis explains in heartbreaking detail the impacts of convictions without a crime on those convicted and their families—as well as what this means for US criminal law. Drawing from Henry's own experience working for many years as a public defender, Smoke But No Fire will be of great interest to legal professionals, students, organizers, and anyone interested in criminal law.

Jessica Henry is a Professor in the Department of Justice Studies at Montclair State University. Previously, she worked as a public defender in New York City for nearly ten years. Her research focuses on the US criminal justice system, particularly wrongful convictions, severe sentences, and hate crimes.

Further reading:

National Registry of Exonerations
Jessica Henry, "Smoke but No Fire: When Innocent People Are Wrongly Convicted of Crimes That Never Happened" in the American Criminal Law Review (via SSRN)
Michelle Alexander, “Go to Trial: Crash the Justice System” in the New York Times Opinion section
2024 New Jersey Clemency Initiative Announcement

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David A. Messenger, "Hunting Nazis in Franco's Spain" (LSU Press, 2014) Jul 30, 2024

Show notes

In the waning days and immediate aftermath of World War II, Nazi diplomats and spies based in Spain decided to stay rather than return to a defeated Germany. The decidedly pro-German dictatorship of General Francisco Franco gave them refuge and welcomed other officials and agents from the Third Reich who had escaped and made their way to Iberia. Amid fears of a revival of the Third Reich, Allied intelligence and diplomatic officers developed a repatriation program across Europe to return these individuals to Germany, where occupation authorities could further investigate them. Yet due to Spain's longstanding ideological alliance with Hitler, German infiltration of the Spanish economy and society was extensive, and the Allies could count on minimal Spanish cooperation in this effort.

In Hunting Nazis in Franco's Spain (LSU Press, 2014), David Messenger deftly traces the development and execution of the Allied repatriation scheme, providing an analysis of Allied, Spanish, and German expatriate responses. Messenger shows that by April 1946, British and American embassy staff in Madrid had compiled a census of the roughly 10,000 Germans then residing in Spain and had drawn up three lists of 1,677 men and women targeted for repatriation to occupied Germany. While the Spanish government did round up and turn over some Germans to the Allies, many of them were intentionally overlooked in the process. By mid-1947, Franco's regime had forced only 265 people to leave Spain; most Germans managed to evade repatriation by moving from Spain to Argentina or by solidifying their ties to the Franco regime and Span-ish life. By 1948, the program was effectively over.

Drawing on records in American, British, and Spanish archives, this first book-length study in English of the repatriation program tells the story of this dramatic chapter in the history of post--World War II Europe.

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David Pozen, "The Constitution of the War on Drugs" (Oxford UP, 2024) Jul 29, 2024

Show notes

The U.S. government's decades-long "war on drugs" is increasingly recognized as a moral travesty as well as a policy failure. The criminalization of substances such as marijuana and magic mushrooms offends core tenets of liberalism, from the right to self-rule to protection of privacy to freedom of religion. It contributes to mass incarceration and racial subordination. And it costs billions of dollars per year—all without advancing public health. Yet, in hundreds upon hundreds of cases, courts have allowed the war to proceed virtually unchecked. How could a set of policies so draconian, destructive, and discriminatory escape constitutional curtailment?

In The Constitution of the War on Drugs (Oxford UP, 2024), David Pozen provides an authoritative, critical constitutional history of the drug war, casting new light on both drug prohibition and U.S. constitutional development. Throughout the 1960s and 1970s, advocates argued that criminal drug bans violate the Constitution's guarantees of due process, equal protection, federalism, free speech, free exercise of religion, and humane punishment. Many scholars and jurists agreed. Pozen demonstrates the plausibility of a constitutional path not taken, one that would have led to a more compassionate approach to drug control.

Rather than restrain the drug war, the Constitution helped to legitimate and entrench it. Pozen shows how a profoundly illiberal and paternalistic policy regime was assimilated into, and came to shape, an ostensibly liberal and pluralistic constitutional order. Placing the U.S. jurisprudence in comparative context, The Constitution of the War on Drugs offers a comprehensive review of drug-rights decisions along with a roadmap to constitutional reform options available today.

This book is available open access here.

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Maarit Jänterä-Jareborg and Hélène Tigroudja, "Women’s Human Rights and the Elimination of Discrimination" (Brill/Nijhoff, 2016) Jul 28, 2024

Show notes

Despite global undertakings to safeguard the full enjoyment of human rights, culture, traditional practices and religion are widely used to discriminate against women. In Women’s Human Rights and the Elimination of Discrimination (Brill/Nijhoff, 2016), 17 scholars approach women’s human rights globally, regionally and nationally, combining the perspectives of public and private international law in a hitherto unique manner. Comprehensive legal, culture-based and theoretical overviews are combined with analyses of topical issues, such as unbalanced sex-ratios, intercountry adoption, women as refugees or as “surrogate mothers”, violence against women and cross-border enforcement of protection orders.

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Jean-Denis Mouton and Péter Kovács. "The Concept of Citizenship in International Law" (Brill/Nijhoff, 2018) Jul 26, 2024

Show notes

Several trends justify why it is worth analysing the concept of citizenship in international law. On the one hand, human mobility enhanced in the last decades of the twentieth century contributed largely to the multiplication of multiple citizenship. The phenomenon of migration, often linked to crises, fosters statelessness and presents new challenges to international law. The internationalization of human rights can accordingly have an impact on the law of nationality. Moreover, within the framework of regional organizations, new forms of citizenship are emerging. This phenomenon, going hand in hand with the traditional, historybased citizenship is also contributing to the challenges that the concept of citizenship faces in international law.

Attempting to get answers to these questions, The Concept of Citizenship in International Law (Brill/Nijhoff, 2018) tackles first common theoretical aspects at a universal level to be followed later by the analysis of the regional aspects. It tries to deepen the ongoing discussion in the scientific community and among the greater public on nationality and citizenship issues.

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