What can abortion and divorce laws in other countries teach Americans about these thorny issues? In this incisive new book, noted legal scholar Mary Ann Glendon looks at the experiences of twenty Western nations, including the United States, and shows how they differ, subtly but profoundly, from one another. Her findings challenge many widely held American beliefs. She reveals, for example, that a compromise on the abortion question is not only possible but typical, even in societies that are deeply divided on the matter. Regarding divorce, the extensive reliance on judicial discretion in the United States is not the best way to achieve fairness in arranging child support, spousal maintenance, or division of property—to judge by the experience of other countries. Glendon's analysis, by searching out alternatives to current U.S. practice, identities new possibilities of reform in these areas. After the late 1960s abortion and divorce became more readily available throughout the West—and most readily in this country—but the approach of American law has been anomalous. Compared with other Western nations, the United States permits less regulation of abortion in the interest of the fetus, provides less public support for maternity and child-rearing, and does less to mitigate the economic hardships of divorce through public assistance or enforcement of private obligations of support.

Glendon looks at these and more profound differences in the light of a powerful new method of legal interpretation. She sees each country's laws as part of a symbol-creating system that yields a distinctive portrait of individuals, human life, and relations between men and women, parents and children, families and larger communities. American law, more than that of other countries, employs a rhetoric of rights, individual liberty, and tolerance for diversity that, unchecked, contributes to the fragmentation of community and its values. Contemporary U.S. family law embodies a narrative about divorce, abortion, and dependency that is probably not the story most Americans would want to tell about these sad and complex matters but that is recognizably related to many of their most cherished ideals.

A comprehensive history of abortion in Renaissance Italy.

In this authoritative history, John Christopoulos provides a provocative and far-reaching account of abortion in sixteenth- and seventeenth-century Italy. His poignant portraits of women who terminated or were forced to terminate pregnancies offer a corrective to longstanding views: he finds that Italians maintained a fundamental ambivalence about abortion. Italians from all levels of society sought, had, and participated in abortions. Early modern Italy was not an absolute anti-abortion culture, an exemplary Catholic society centered on the “traditional family.” Rather, Christopoulos shows, Italians held many views on abortion, and their responses to its practice varied.

Bringing together medical, religious, and legal perspectives alongside a social and cultural history of sexuality, reproduction, and the family, Christopoulos offers a nuanced and convincing account of the meanings Italians ascribed to abortion and shows how prevailing ideas about the practice were spread, modified, and challenged. Christopoulos begins by introducing readers to prevailing ideas about abortion and women’s bodies, describing the widely available purgative medicines and surgeries that various healers and women themselves employed to terminate pregnancies. He then explores how these ideas and practices ran up against and shaped theology, medicine, and law. Catholic understanding of abortion was changing amid religious, legal, and scientific debates concerning the nature of human life, women’s bodies, and sexual politics. Christopoulos examines how ecclesiastical, secular, and medical authorities sought to regulate abortion, and how tribunals investigated and punished its procurers—or did not, even when they could have. Abortion in Early Modern Italy offers a compelling and sensitive study of abortion in a time of dramatic religious, scientific, and social change.

One of the most private decisions a woman can make, abortion is also one of the most contentious topics in American civic life. Protested at rallies and politicized in party platforms, terminating pregnancy is often characterized as a selfish decision by women who put their own interests above those of the fetus. This background of stigma and hostility has stifled women’s willingness to talk about abortion, which in turn distorts public and political discussion. To pry open the silence surrounding this public issue, Sanger distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.

Laws regulating abortion patients and providers treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake. Exploiting the emotional power of fetal imagery, laws require women to undergo ultrasound, a practice welcomed in wanted pregnancies but commandeered for use against women with unwanted pregnancies. Sanger takes these prejudicial views of women’s abortion decisions into the twenty-first century by uncovering new connections between abortion law and American culture and politics.

New medical technologies, women’s increasing willingness to talk online and off, and the prospect of tighter judicial reins on state legislatures are shaking up the practice of abortion. As talk becomes more transparent and acceptable, women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.

In this passionately argued overview, a longtime activist-scholar takes readers through the changing landscape of academic freedom. From the aftermath of September 11th to the new frontier of blogging, Robert O'Neil examines the tension between institutional and individual interests. Many cases boil down to a hotly contested question: who has the right to decide what is taught in the classroom?

O'Neil shows how courts increasingly restrict professorial judgment, and how the feeble protection of what is posted on the Internet and written in email makes academics more vulnerable than ever. Even more provocatively, O'Neil argues, the newest threats to academic freedom come not from government, but from the private sector. Corporations increasingly sponsor and control university-based research, while self-appointed watchdogs systematically harass individual teachers on websites and blogs. Most troubling, these threats to academic freedom are nearly immune from legal recourse.

Insisting that new concepts of academic freedom, and new strategies for maintaining it are needed, O'Neil urges academics to work together--and across rigid and simplistic divisions between "left" and "right."

In the five decades after the Civil War, the United States witnessed a profusion of legal institutions designed to cope with the nation’s exceptionally acute industrial accident crisis. Jurists elaborated the common law of torts. Workingmen’s organizations founded a widespread system of cooperative insurance. Leading employers instituted welfare-capitalist accident relief funds. And social reformers advocated compulsory insurance such as workmen’s compensation.

John Fabian Witt argues that experiments in accident law at the turn of the twentieth century arose out of competing views of the loose network of ideas and institutions that historians call the ideology of free labor. These experiments a century ago shaped twentieth- and twenty-first-century American accident law; they laid the foundations of the American administrative state; and they occasioned a still hotly contested legal transformation from the principles of free labor to the categories of insurance and risk. In this eclectic moment at the beginnings of the modern state, Witt describes American accident law as a contingent set of institutions that might plausibly have developed along a number of historical paths. In turn, he suggests, the making of American accident law is the story of the equally contingent remaking of our accidental republic.

At a time when legal and social prohibitions on sexual relationships are declining, Americans are still nearly unanimous in their condemnation of adultery. Over 90 percent disapprove of cheating on a spouse. In her comprehensive account of the legal and social consequences of infidelity, Deborah Rhode explores why. She exposes the harms that criminalizing adultery inflicts, and she makes a compelling case for repealing adultery laws and prohibitions on polygamy.

In the twenty-two states where adultery is technically illegal although widely practiced, it can lead to civil lawsuits, job termination, and loss of child custody. It is routinely used to threaten and tarnish public officials and undermine military careers. And running through the history of anti-adultery legislation is a double standard that has repeatedly punished women more severely than men. An “unwritten law” allowing a man to avoid conviction for killing his wife’s lover remained common well into the twentieth century. Murder under these circumstances was considered an act of understandable passion.

Adultery has been called the most creative of sins, and novelists and popular media have lavished attention on sexual infidelity. As a focus of serious study, however, adultery has received short shrift. Rhode combines a comprehensive account of the legal and social consequences of adultery with a forceful argument for halting the state’s policing of fidelity.

American methods of policy implementation and dispute resolution are more adversarial and legalistic when compared with the systems of other economically advanced countries. Americans more often rely on legal threats and lawsuits. American laws are generally more complicated and prescriptive, adjudication more costly, and penalties more severe. In a thoughtful and cogently argued book, Robert Kagan examines the origins and consequences of this system of "adversarial legalism."

Kagan describes the roots of adversarial legalism and the deep connections it has with American political institutions and values. He investigates its social costs as well as the extent to which lawyers perpetuate it. Ranging widely across many legal fields, including criminal law, environmental regulations, tort law, and social insurance programs, he provides comparisons with the legal and regulatory systems of western Europe, Canada, and Japan that point to possible alternatives to the American methods.

Kagan notes that while adversarial legalism has many virtues, its costs and unpredictability often alienate citizens from the law and frustrate the quest for justice. This insightful study deepens our understanding of law and its relationship to politics in America and raises valuable questions about the future of the American legal system.

In the first edition of this groundbreaking book, Robert Kagan explained why America is much more adversarial—likely to rely on legal threats and lawsuits—than other economically advanced countries, with more prescriptive laws, more costly adjudications, and more severe penalties. This updated edition also addresses the rise of the conservative legal movement and anti-statism in the Republican party, which have put in sharp relief the virtues of adversarial legalism in its ability to empower citizens, lawyers, and judges to mount challenges to the arbitrary or unlawful exercise of government authority.

“This is a wonderful piece of work, richly detailed and beautifully written. It is the best, sanest, and most comprehensive evaluation and critique of the American way of law that I have seen. Every serious scholar concerned with justice and efficiency, and every policymaker who is serious about improving the American legal order, should read this trenchant and exciting book.”
—Lawrence Friedman, Stanford University

“A tour de force. It is an elegantly written, consistently insightful analysis and critique of the American emphasis on litigation and punitive sanctions in the policy and administrative process.”
—Charles R. Epp, Law and Society Review

President Bill Clinton’s year of crisis, which began when his affair with Monica Lewinsky hit the front pages in January 1998, engendered a host of important questions of criminal and constitutional law, public and private morality, and political and cultural conflict.

In a book written while the events of the year were unfolding, Richard Posner presents a balanced and scholarly understanding of the crisis that also has the freshness and immediacy of journalism. Posner clarifies the issues and eliminates misunderstandings concerning facts and the law that were relevant to the investigation by Independent Counsel Kenneth Starr and to the impeachment proceeding itself. He explains the legal definitions of obstruction of justice and perjury, which even many lawyers are unfamiliar with. He carefully assesses the conduct of Starr and his prosecutors, including their contacts with the lawyers for Paula Jones and their hardball tactics with Monica Lewinsky and her mother. He compares and contrasts the Clinton affair with Watergate, Iran–Contra, and the impeachment of Andrew Johnson, exploring the subtle relationship between public and private morality. And he examines the place of impeachment in the American constitutional scheme, the pros and cons of impeaching President Clinton, and the major procedural issues raised by both the impeachment in the House and the trial in the Senate. This book, reflecting the breadth of Posner’s experience and expertise, will be the essential foundation for anyone who wants to understand President Clinton’s impeachment ordeal.

Insightful and path-breaking, Affirmative Action and the Stalled Quest for Black Progress examines the accomplishments and limitations of the set-aside programs once at the center of political debates about affirmative action in the United States.

Debunking conventional narratives of Afghanistan as a perennial war zone or marginal frontier, Faiz Ahmed presents a vibrant account of the first Muslim-majority country to gain independence from the British Empire, form a fully sovereign government, and promulgate an original constitution after the fall of the Ottoman Empire.

Far from a landlocked wilderness, turn-of-the-twentieth-century Afghanistan was a magnet for itinerant scholars and emissaries shuttling between Ottoman and British imperial domains. Tracing Afghans’ longstanding but seldom examined scholastic ties to Istanbul, Damascus, and Baghdad, as well as greater Delhi and Lahore, Ahmed vividly describes how the Kabul court recruited jurists to craft a modern state within the interpretive traditions of Islamic law and ethics, or shariʿa, and international legal norms. Beginning with the first Ottoman mission to Kabul in 1877, and culminating with parallel independence struggles in Afghanistan, India, and Turkey after World War I, this rich narrative explores encounters between diverse streams of Muslim thought and politics—from Young Turk lawyers to Pashtun clerics; Ottoman Arab officers to British Raj bureaucrats; and the last caliphs to a remarkable dynasty of Afghan kings and queens.

By unearthing a lost history behind Afghanistan’s independence and first constitution, Ahmed shows how debates today on Islam, governance, and the rule of law have deep roots in a beleaguered land. Based on research in six countries and as many languages, Afghanistan Rising rediscovers a time when Kabul stood proudly for anticolonial coalitions, self-determination, and contested visions of reform in the Global South and Islamicate world.

An Artforum Best Book of the Year
A Legal Theory Bookworm Book of the Year

“After Nature argues that we will deserve the future only because it will be the one we made. We will live, or die, by our mistakes.” —Christine Smallwood, Harper’s

Nature no longer exists apart from humanity. Henceforth, the world we will inhabit is the one we have made. Geologists have called this new planetary epoch the Anthropocene, the Age of Humans. The geological strata we are now creating record industrial emissions, industrial-scale crop pollens, and the disappearance of species driven to extinction. Climate change is planetary engineering without design. These facts of the Anthropocene are scientific, but its shape and meaning are questions for politics—a politics that does not yet exist. After Nature develops a politics for this post-natural world.

“Dazzling…Purdy hopes that climate change might spur yet another change in how we think about the natural world, but he insists that such a shift will be inescapably political…For a relatively slim volume, this book distills an incredible amount of scholarship—about Americans’ changing attitudes toward the natural world, and about how those attitudes might change in the future.”
—Ross Andersen, The Atlantic

Forty years after the U.S. Supreme Court handed down its decision legalizing abortion, Roe v. Wade continues to make headlines. After Roe: The Lost History of the Abortion Debate cuts through the myths and misunderstandings to present a clear-eyed account of cultural and political responses to the landmark 1973 ruling in the decade that followed. The grassroots activists who shaped the discussion after Roe, Mary Ziegler shows, were far more fluid and diverse than the partisans dominating the debate today.

In the early years after the decision, advocates on either side of the abortion battle sought common ground on issues from pregnancy discrimination to fetal research. Drawing on archives and more than 100 interviews with key participants, Ziegler’s revelations complicate the view that abortion rights proponents were insensitive to larger questions of racial and class injustice, and expose as caricature the idea that abortion opponents were inherently antifeminist. But over time, “pro-abortion” and “anti-abortion” positions hardened into “pro-choice” and “pro-life” categories in response to political pressures and compromises. This increasingly contentious back-and-forth produced the interpretation now taken for granted—that Roe was primarily a ruling on a woman’s right to choose.

Peering beneath the surface of social-movement struggles in the 1970s, After Roe reveals how actors on the left and the right have today made Roe a symbol for a spectrum of fervently held political beliefs.

In the twentieth century, American society has experienced a “rights revolution”: a commitment by the national government to promote a healthful environment, safe products, freedom from discrimination, and other rights unknown to the founding generation. This development has profoundly affected constitutional democracy by skewing the original understanding of checks and balances, federalism, and individual rights. Cass Sunstein tells us how it is possible to interpret and reform this regulatory state regime in a way that will enhance freedom and welfare while remaining faithful to constitutional commitments.

Sunstein vigorously defends government regulation against Reaganite/Thatcherite attacks based on free-market economics and pre–New Deal principles of private right. Focusing on the important interests in clean air and water, a safe workplace, access to the air waves, and protection against discrimination, he shows that regulatory initiatives have proved far superior to an approach that relies solely on private enterprise. Sunstein grants that some regulatory regimes have failed and calls for reforms that would amount to an American perestroika: a restructuring that embraces the use of government to further democratic goals but that insists on the decentralization and productive potential of private markets.

Sunstein also proposes a theory of interpretation that courts and administrative agencies could use to secure constitutional goals and to improve the operation of regulatory programs. From this theory he seeks to develop a set of principles that would synthesize the modern regulatory state with the basic premises of the American constitutional system. Teachers of law, policymakers and political scientists, economists and historians, and a general audience interested in rights, regulation, and government will find this book an essential addition to their libraries.

A New Statesman Book of the Year

A critical analysis of the transformation of constitutionalism from an increasingly irrelevant theory of limited government into the most influential philosophy of governance in the world today.

Constitutionalism is universally commended because it has never been precisely defined. Martin Loughlin argues that it is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. An Enlightenment idea that in the nineteenth century became America’s unique contribution to the philosophy of government, constitutionalism was by the mid-twentieth century widely regarded as an anachronism. Advocating separated powers and limited government, it was singularly unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation, giving the Constitution an unprecedented role in society. Once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity.

Against Constitutionalism explains why this has happened and its far-reaching consequences. Spearheaded by a “rights revolution” that subjects governmental action to comprehensive review through abstract principles, judges acquire greatly enhanced power as oracles of the regime’s “invisible constitution.” Constitutionalism is refashioned as a theory maintaining that governmental authority rests not on collective will but on adherence to abstract standards of “public reason.” And across the world the variable practices of constitutional government have been reshaped by its precepts.

Constitutionalism, Loughlin argues, now propagates the widespread belief that social progress is advanced not through politics, electoral majorities, and legislative action, but through innovative judicial interpretation. The rise of constitutionalism, commonly conflated with constitutional democracy, actually contributes to its degradation.

Do citizens of a nation such as the United States have a moral duty to obey the law? Do officials, when interpreting the Constitution, have an obligation to follow what that text meant when ratified? To follow precedent? To follow what the Supreme Court today says the Constitution means?

These are questions of political obligation (for citizens) and interpretive obligation (for anyone interpreting the Constitution, often officials). Abner Greene argues that such obligations do not exist. Although citizens should obey some laws entirely, and other laws in some instances, no one has put forth a successful argument that citizens should obey all laws all the time. Greene’s case is not only “against” obligation. It is also “for” an approach he calls “permeable sovereignty”: all of our norms are on equal footing with the state’s laws. Accordingly, the state should accommodate religious, philosophical, family, or tribal norms whenever possible.

Greene shows that questions of interpretive obligation share many qualities with those of political obligation. In rejecting the view that constitutional interpreters must follow either prior or higher sources of constitutional meaning, Greene confronts and turns aside arguments similar to those offered for a moral duty of citizens to obey the law.

Agent Orange on Trial is a riveting legal drama with all the suspense of a courtroom thriller. One of the Vietnam War’s farthest reaching legacies was the Agent Orange case. In this unprecedented personal injury class action, veterans charge that a valuable herbicide, indiscriminately sprayed on the luxuriant Vietnam jungle a generation ago, has now caused cancers, birth defects, and other devastating health problems. Peter Schuck brilliantly recounts the gigantic confrontation between two million ex-soldiers, the chemical industry, and the federal government. From the first stirrings of the lawyers in 1978 to the court plan in 1985 for distributing a record $200 million settlement, the case, which is now on appeal, has extended the frontiers of our legal system in all directions.

In a book that is as much about innovative ways to look at the law as it is about the social problems arising from modern science, Schuck restages a sprawling, complex drama. The players include dedicated but quarrelsome veterans, a crusading litigator, class action organizers, flamboyant trial lawyers, astute court negotiators, and two federal judges with strikingly different judicial styles. High idealism, self-promotion, Byzantine legal strategies, and judicial creativity combine in a fascinating portrait of a human struggle for justice through law.

The Agent Orange case is the most perplexing and revealing example until now of a new legal genre: the mass toxic tort. Such cases, because of their scale, cost, geographical and temporal dispersion, and causal uncertainty, present extraordinarily difficult challenges to our legal system. They demand new approaches to procedure, evidence, and the definition of substantive legal rights and obligations, as well as new roles for judges, juries, and regulatory agencies. Schuck argues that our legal system must be redesigned if it is to deal effectively with the increasing number of chemical disasters such as the Bhopal accident, ionizing radiation, asbestos, DES, and seepage of toxic wastes. He imaginatively reveals the clash between our desire for simple justice and the technical demands of a complex legal system.

Patricia Williams is a lawyer and a professor of commercial law, the great-great-granddaughter of a slave and a white southern lawyer. The Alchemy of Race and Rights is an eloquent autobiographical essay in which the author reflects on the intersection of race, gender, and class. Using the tools of critical literary and legal theory, she sets out her views of contemporary popular culture and current events, from Howard Beach to homelessness, from Tawana Brawley to the law-school classroom, from civil rights to Oprah Winfrey, from Bernhard Goetz to Mary Beth Whitehead. She also traces the workings of “ordinary racism”—everyday occurrences, casual, unintended, banal perhaps, but mortifying. Taking up the metaphor of alchemy, Williams casts the law as a mythological text in which the powers of commerce and the Constitution, wealth and poverty, sanity and insanity, wage war across complex and overlapping boundaries of discourse. In deliberately transgressing such boundaries, she pursues a path toward racial justice that is, ultimately, transformative.

Williams gets to the roots of racism not by finger-pointing but by much gentler methods. Her book is full of anecdote and witness, vivid characters known and observed, trenchant analysis of the law’s shortcomings. Only by such an inquiry and such patient phenomenology can we understand racism. The book is deeply moving and not so, finally, just because racism is wrong—we all know that. What we don’t know is how to unthink the process that allows racism to persist. This Williams enables us to see. The result is a testament of considerable beauty, a triumph of moral tactfulness. The result, as the title suggests, is magic.

How colleges and universities can respond to legal pressures while remaining true to their educational missions.

Not so long ago, colleges and universities had little interaction with the law. In the 1970s, only a few well-heeled universities even employed in-house legal counsel. But now we live in the age of tenure-denial lawsuits, free speech battles, and campus sexual assault investigations. Even athletics rules violations have become a serious legal matter. The pressures of regulation, litigation, and legislation, Louis Guard and Joyce Jacobsen write, have fostered a new era in higher education, and institutions must know how to respond.

For many higher education observers and participants, including most administrators and faculty, the maze of legal mandates and potential risks can seem bewildering. Guard, a general counsel with years of higher education law experience, and Jacobsen, a former college president, map this unfamiliar terrain. All the Campus Lawyers provides a vital, up-to-date assessment of the impact of legal concerns on higher education and helps readers make sense of the most pressing trends and issues, including civil rights; free speech and expression; student life and wellness; admissions, advancement, and community relations; governance and oversight; the higher education business model; and on-campus crises, from cyberattacks to pandemics.

As well as informing about the latest legal and regulatory developments affecting higher education, Guard and Jacobsen offer practical guidance to those in positions of campus authority. There has never been a more crucial time for college and university boards, presidents, inside and outside counsel, and other higher education leaders to know the law and prepare for legal challenges.

Parents of children with disabilities often situate their activism as a means of improving the world for their child. However, some disabled activists perceive parental activism as working against the independence and dignity of people with disabilities. This thorny relationship is at the heart of the groundbreaking Allies and Obstacles.

The authors chronicle parents’ path-breaking advocacy in arenas such as the right to education and to liberty via deinstitutionalization as well as how they engaged in legal and political advocacy. Allies and Obstacles provides a macro analysis of parent activism using a social movement perspective to reveal and analyze the complex—and often tense—relationship of parents to disability rights organizations and activism. 

The authors look at organizational and individual narratives using four case studies that focus on intellectual disability, psychiatric diagnoses, autism, and a broad range of physical disabilities including cerebral palsy and muscular dystrophy. These cases explore the specific ways in which activism developed among parents and people with disabilities, as well as the points of alliance and the key points of contestation. Ultimately, Allies and Obstacles develops new insights into disability activism, policy, and the family.

The Muwaṭṭaʾ, written in the eighth century CE by Mālik b. Anas—known as the Imam of Medina—is the first written treatise of Islamic law. The Prophet Muḥammad and his earliest followers immigrated to the city of Medina after they experienced severe persecution in their hometown of Mecca, establishing the first Muslim community in Medina. As the Muslim community rapidly expanded, Medina lost some of its political importance, but retained its position as the leading Muslim center of learning for over one hundred years after the Prophet Muḥammad’s death. Imam Mālik’s Muwaṭṭaʾ provides an unparalleled window into the life of this early Muslim community, and the rituals, laws, and customs they upheld.

This translation is based on the recently published critical edition of the Muwaṭṭaʾ, The Royal Moroccan Edition (2013). With its extensive notes, this edition is intended to make this important early legal text widely accessible to a broad spectrum of readers, including those interested in both legal history and Islamic Studies.

In American Homicide, Randolph Roth charts changes in the character and incidence of homicide in the U.S. from colonial times to the present. Roth argues that the United States is distinctive in its level of violence among unrelated adults—friends, acquaintances, and strangers. America was extraordinarily homicidal in the mid-seventeenth century, but it became relatively non-homicidal by the mid-eighteenth century, even in the slave South; and by the early nineteenth century, rates in the North and the mountain South were extremely low. But the homicide rate rose substantially among unrelated adults in the slave South after the American Revolution; and it skyrocketed across the United States from the late 1840s through the mid-1870s, while rates in most other Western nations held steady or fell.

That surge—and all subsequent increases in the homicide rate—correlated closely with four distinct phenomena: political instability; a loss of government legitimacy; a loss of fellow-feeling among members of society caused by racial, religious, or political antagonism; and a loss of faith in the social hierarchy. Those four factors, Roth argues, best explain why homicide rates have gone up and down in the United States and in other Western nations over the past four centuries, and why the United States is today the most homicidal affluent nation.

Since 1975, when the U.S. government adopted a policy of self-determination for American Indian nations, a large number of the 562 federally recognized nations have seized the opportunity to govern themselves and determine their own economic, political, and cultural futures. As a first and crucial step in this process, many nations are revising constitutions originally developed by the U.S. government to create governmental structures more attuned to native people's unique cultural and political values. These new constitutions and the governing institutions they create are fostering greater governmental stability and accountability, increasing citizen support of government, and providing a firmer foundation for economic and political development.

This book brings together for the first time the writings of tribal reform leaders, academics, and legal practitioners to offer a comprehensive overview of American Indian nations' constitutional reform processes and the rebuilding of native nations. The book is organized in three sections. The first part investigates the historical, cultural, economic, and political motivations behind American Indian nations' recent reform efforts. The second part examines the most significant areas of reform, including criteria for tribal membership/citizenship and the reform of governmental institutions. The book concludes with a discussion of how American Indian nations are navigating the process of reform, including overcoming the politics of reform, maximizing citizen participation, and developing short-term and long-term programs of civic education.

This is the standard reader in American law and constitutional development. The selections demonstrate that the legal order, once defined by society, helps in molding the various forces of the social life of that society. The essays cover the entire period of the American experience, from the colonies to postindustrial society.

Additions to this enlarged edition include essays by Michael Parrish on the Depression and the New Deal; Abram Chayes on the role of the judge in public law litigation; David Vogel on social regulation; Harry N. Scheiber on doctrinal legacies and institutional innovations in the relation between law and the economy; and Lawrence M. Friedman on American legal history.

In America, we are eager to claim ownership: our homes, our ideas, our organs, even our own celebrity. But beneath our nation’s proprietary longing looms a troublesome question: what does it mean to own something? More simply: what is property?

The question is at the heart of many contemporary controversies, including disputes over who owns everything from genetic material to indigenous culture to music and film on the Internet. To decide if and when genes or culture or digits are a kind of property that can be possessed, we must grapple with the nature of property itself. How does it originate? What purposes does it serve? Is it a natural right or one created by law?

Accessible and mercifully free of legal jargon, American Property reveals the perpetual challenge of answering these questions, as new forms of property have emerged in response to technological and cultural change, and as ideas about the appropriate scope of government regulation have shifted. This first comprehensive history of property in the United States is a masterly guided tour through a contested human institution that touches all aspects of our lives and desires.

Stuart Banner shows that property exists to serve a broad set of purposes, constantly in flux, that render the idea of property itself inconstant. Despite our ideals of ownership, property has always been a means toward other ends. What property signifies and what property is, we come to see, has consistently changed to match the world we want to acquire.

Celebrating its fiftieth anniversary, Robert McCloskey’s classic work on the Supreme Court’s role in constructing the U.S. Constitution has introduced generations of students to the workings of our nation’s highest court. For this new fifth edition, Sanford Levinson extends McCloskey’s magisterial treatment to address the Court’s most recent decisions.

As in prior editions, McCloskey’s original text remains unchanged. In his historical interpretation, he argues that the strength of the Court has always been its sensitivity to the changing political scene, as well as its reluctance to stray too far from the main currents of public sentiments. In two revised chapters, Levinson shows how McCloskey’s approach continues to illuminate developments since 2005, including the Court’s decisions in cases arising out of the War on Terror, which range from issues of civil liberty to tests of executive power. He also discusses the Court’s skepticism regarding campaign finance regulation; its affirmation of the right to bear arms; and the increasingly important nomination and confirmation process of Supreme Court justices, including that of the first Hispanic justice, Sonia Sotomayor.

The best and most concise account of the Supreme Court and its place in American politics, McCloskey's wonderfully readable book is an essential guide to the past, present, and future prospects of this institution.

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: “We the People.” Robert Tsai’s gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion—the defiant groups that refused to accept the Constitution’s definition of who “the people” are and how their authority should be exercised.

America’s Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a new constitution. He examines the alternative Americas envisioned by John Brown (who dreamed of a republic purged of slavery), Robert Barnwell Rhett (the Confederate “father of secession”), and Etienne Cabet (a French socialist who founded a utopian society in Illinois). Other dreamers include the University of Chicago academics who created a world constitution for the nuclear age; the Republic of New Afrika, which demanded a separate country carved from the Deep South; and the contemporary Aryan movement, which plans to liberate America from multiculturalism and feminism.

Countering those who treat constitutional law as a single tradition, Tsai argues that the ratification of the Constitution did not quell debate but kindled further conflicts over basic questions of power and community. He explains how the tradition mutated over time, inspiring generations and disrupting the best-laid plans for simplicity and order. Idealists on both the left and right will benefit from reading these cautionary tales.

For most Americans, the Revolution’s main achievement is summed up by the phrase “life, liberty, and the pursuit of happiness.” Yet far from a straightforward attempt to be free of Old World laws and customs, the American founding was also a bid for inclusion in the community of nations as it existed in 1776. America aspired to diplomatic recognition under international law and the authority to become a colonizing power itself.

As Eliga Gould shows in this reappraisal of American history, the Revolution was an international transformation of the first importance. To conform to the public law of Europe’s imperial powers, Americans crafted a union nearly as centralized as the one they had overthrown, endured taxes heavier than any they had faced as British colonists, and remained entangled with European Atlantic empires long after the Revolution ended.

No factor weighed more heavily on Americans than the legally plural Atlantic where they hoped to build their empire. Gould follows the region’s transfiguration from a fluid periphery with its own rules and norms to a place where people of all descriptions were expected to abide by the laws of Western Europe—“civilized” laws that precluded neither slavery nor the dispossession of Native Americans.

The ancient Greeks invented written law. Yet, in contrast to later societies in which law became a professional discipline, the Greeks treated laws as components of social and political history, reflecting the daily realities of managing society. To understand Greek law, then, requires looking into extant legal, forensic, and historical texts for evidence of the law in action. From such study has arisen the field of ancient Greek law as a scholarly discipline within classical studies, a field that has come into its own since the 1970s.

This edited volume charts new directions for the study of Greek law in the twenty-first century through contributions from eleven leading scholars. The essays in the book’s first section reassess some of the central debates in the field by looking at questions about the role of law in society, the notion of “contracts,” feuding and revenge in the court system, and legal protections for slaves engaged in commerce. The second section breaks new ground by redefining substantive areas of law such as administrative law and sacred law, as well as by examining sources such as Hellenistic inscriptions that have been comparatively neglected in recent scholarship. The third section evaluates the potential of methodological approaches to the study of Greek law, including comparative studies with other cultures and with modern legal theory. The volume ends with an essay that explores pedagogy and the relevance of teaching Greek law in the twenty-first century.

Animal law has become a topic of growing importance internationally, with animal welfare and animal rights often assuming center stage in contemporary debates about the legal status of animals. While nonspecialists routinely decontextualize ancient texts to support or deny rights to animals, experts in fields such as classics, biblical studies, Assyriology, Egyptology, rabbinics, and late antique Christianity have only just begun to engage the topic of animals and the law in their respective areas. This volume consists of original studies by scholars from a range of Mediterranean and West Asian fields on a variety of topics at the intersection of animals and the law in antiquity. Contributors include Rozenn Bailleul-LeSuer, Beth Berkowitz, Andrew McGowan, F. S. Naiden, Saul M. Olyan, Seth Richardson, Jordan D. Rosenblum, Andreas Schüle, Miira Tuominen, and Daniel Ullucci. The volume is essential reading for scholars and students of both the ancient world and contemporary law.

“Eminently readable, and anybody who cares about the future of American democracy in these perilous times can only hope that it will be widely read and carefully considered.”
—James Pope, Washington Post

“Fishkin and Forbath’s accessible work serves as both history lesson and political playbook, offering the Left an underutilized—and perhaps counterintuitive—tool in the present-day fight against social and economic injustice: the Constitution.”
—Benjamin Morse, Jacobin

“Aims to recover the Constitution’s pivotal role in shaping claims of justice and equality…in engaging, imaginative prose that makes even the present court’s capture by the ideological right a compelling platform for a revived social-democratic constitutional politics.”
—New Republic

Oligarchy is a threat to the American republic. When too much economic and political power is concentrated in too few hands, we risk losing the “republican form of government” the Constitution requires. Today, courts enforce the Constitution as if it had almost nothing to say about this threat. But as this revolutionary retelling of constitutional history shows, a commitment to prevent oligarchy once stood at the center of a robust tradition in American political and constitutional thought.

Joseph Fishkin and William Forbath demonstrate that reformers, legislators, and even judges working in this “democracy-of-opportunity” tradition understood that the Constitution imposes a duty on legislatures to thwart oligarchy and promote a broad distribution of wealth and political power. These ideas led Jacksonians to fight special economic privileges for the few, Populists to try to break up monopoly power, and Progressives to battle for the constitutional right to form a union.

But today, as we enter a new Gilded Age, this tradition in progressive American economic and political thought lies dormant. The Anti-Oligarchy Constitution begins the work of recovering it and exploring its profound implications for our deeply unequal society and badly damaged democracy.

Winner, Friends of the Dallas Public Library Award from the Texas Institute of Letters, 2003

Antiphon was a fifth-century Athenian intellectual (ca. 480-411 BCE) who created the profession of speechwriting while serving as an influential and highly sought-out adviser to litigants in the Athenian courts. Three of his speeches are preserved, together with three sets of Tetralogies (four hypothetical paired speeches), whose authenticity is sometimes doubted. Fragments also survive of intellectual treatises on subjects including justice, law, and nature (physis), which are often attributed to a separate Antiphon the Sophist. Were these two Antiphons really one and the same individual, endowed with a wide-ranging mind ready to tackle most of the diverse intellectual interests of his day?

Through an analysis of all these writings, this book convincingly argues that they were composed by a single individual, Antiphon the Athenian. Michael Gagarin sets close readings of individual works within a wider discussion of the fifth-century Athenian intellectual climate and the philosophical ferment known as the sophistic movement. This enables him to demonstrate the overall coherence of Antiphon's interests and writings and to show how he was a pivotal figure between the sophists and the Attic orators of the fourth century. In addition, Gagarin's argument allows us to reassess the work of the sophists as a whole, so that they can now be seen as primarily interested in logos (speech, argument) and as precursors of fourth-century rhetoric, rather than in their usual role as foils for Plato.

After thirty years, the debate over antitrust's ideology has quieted. Most now agree that the protection of consumer welfare should be the only goal of antitrust laws. Execution, however, is another matter. The rules of antitrust remain unfocused, insufficiently precise, and excessively complex. The problem of poorly designed rules is severe, because in the short run rules weigh much more heavily than principles. At bottom, antitrust is a defensible enterprise only if it can make the microeconomy work better, after accounting for the considerable costs of operating the system.

The Antitrust Enterprise is the first authoritative and compact exposition of antitrust law since Robert Bork's classic The Antitrust Paradox was published more than thirty years ago. It confronts not only the problems of poorly designed, overly complex, and inconsistent antitrust rules but also the current disarray of antitrust's rule of reason, offering a coherent and workable set of solutions. The result is an antitrust policy that is faithful to the consumer welfare principle but that is also more readily manageable by the federal courts and other antitrust tribunals.

Markets run on information. Buyers make decisions by relying on their knowledge of the products available, and sellers decide what to produce based on their understanding of what buyers want. But the distribution of market information has changed, as consumers increasingly turn to sources that act as intermediaries for information—companies like Yelp and Google. Antitrust Law in the New Economy considers a wide range of problems that arise around one aspect of information in the marketplace: its quality.

Sellers now have the ability and motivation to distort the truth about their products when they make data available to intermediaries. And intermediaries, in turn, have their own incentives to skew the facts they provide to buyers, both to benefit advertisers and to gain advantages over their competition. Consumer protection law is poorly suited for these problems in the information economy. Antitrust law, designed to regulate powerful firms and prevent collusion among producers, is a better choice. But the current application of antitrust law pays little attention to information quality.

Mark Patterson discusses a range of ways in which data can be manipulated for competitive advantage and exploitation of consumers (as happened in the LIBOR scandal), and he considers novel issues like “confusopoly” and sellers’ use of consumers’ personal information in direct selling. Antitrust law can and should be adapted for the information economy, Patterson argues, and he shows how courts can apply antitrust to address today’s problems.

A new and urgently needed guide to making the American economy more competitive at a time when tech giants have amassed vast market power.

The U.S. economy is growing less competitive. Large businesses increasingly profit by taking advantage of their customers and suppliers. These firms can also use sophisticated pricing algorithms and customer data to secure substantial and persistent advantages over smaller players. In our new Gilded Age, the likes of Google and Amazon fill the roles of Standard Oil and U.S. Steel.

Jonathan Baker shows how business practices harming competition manage to go unchecked. The law has fallen behind technology, but that is not the only problem. Inspired by Robert Bork, Richard Posner, and the “Chicago school,” the Supreme Court has, since the Reagan years, steadily eroded the protections of antitrust. The Antitrust Paradigm demonstrates that Chicago-style reforms intended to unleash competitive enterprise have instead inflated market power, harming the welfare of workers and consumers, squelching innovation, and reducing overall economic growth. Baker identifies the errors in economic arguments for staying the course and advocates for a middle path between laissez-faire and forced deconcentration: the revival of pro-competitive economic regulation, of which antitrust has long been the backbone.

Drawing on the latest in empirical and theoretical economics to defend the benefits of antitrust, Baker shows how enforcement and jurisprudence can be updated for the high-tech economy. His prescription is straightforward. The sooner courts and the antitrust enforcement agencies stop listening to the Chicago school and start paying attention to modern economics, the sooner Americans will reap the benefits of competition.