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Administrative Law
Its Growth, Procedure, and Significance
Roscoe Pound
University of Pittsburgh Press, 1942

Roscoe Pound (1870-1964) taught at Harvard from 1910 until 1947, serving as dean of the Harvard Law School from 1916 to 1936. He is acknowledged as the founder of sociological jurisprudence—an interdisciplinary approach to legal concepts in which the law is recognized as a dynamic system that is influenced by social conditions and that, in turn, influences society as a whole. Pound's five-volume Jurisprudence is among the most comprehensive of twentieth-century legal works. His lectures draw direct connections between the abstract fundamentals of philosophy, using the works of Kant, Hegel, Spencer, Comte, and others, and the trends and problems of legal principles and rules. 

This book includes topics of:  “The Place of Administration in the Legal Order”; “The Rise of Administrative Justice”; “Administrative Procedure”; “The Future of Judicial Justice”; and “Substitutes for Law”

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Alternative Dispute Resolution in the Regulatory Process
Deirdre McCarthy Gallagher
Michigan State University Press, 2020
An in-depth look at the institutionalization of alternative dispute resolution (ADR) processes in the federal and state regulatory arenas over the past twenty-five years, this volume showcases the value of these processes and highlights the potential for their expanded application and growth. It describes ADR techniques, how to use them, and how to integrate them into existing processes, using examples from the Federal Energy Regulatory Commission and three state utility regulatory commissions. The book recounts ADR successes, recognizing that traditional litigative methods may not always meet the needs of agencies, the parties, or the public. Institutionalizing these processes requires a systematic commitment to different approaches to problem-solving and, ultimately, cultural change. The authors spearheaded initiatives to integrate these processes and skills at the federal level. Drawing from valuable insights gained from their experience, the authors introduce a versatile new ADR system design model, the Voices of Value, which aims to enhance input, creativity, and effectiveness in regulatory and other public arenas as well as the private sector.
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Arresting Contagion
Science, Policy, and Conflicts over Animal Disease Control
Alan L. Olmstead and Paul W. Rhode
Harvard University Press, 2015

Over sixty percent of all infectious human diseases, including tuberculosis, influenza, cholera, and hundreds more, are shared with other vertebrate animals. Arresting Contagion tells the story of how early efforts to combat livestock infections turned the United States from a disease-prone nation into a world leader in controlling communicable diseases. Alan Olmstead and Paul Rhode show that many innovations devised in the fight against animal diseases, ranging from border control and food inspection to drug regulations and the creation of federal research labs, provided the foundation for modern food safety programs and remain at the heart of U.S. public health policy.

America’s first concerted effort to control livestock diseases dates to the founding of the Bureau of Animal Industry (BAI) in 1884. Because the BAI represented a milestone in federal regulation of commerce and industry, the agency encountered major jurisdictional and constitutional obstacles. Nevertheless, it proved effective in halting the spread of diseases, counting among its early breakthroughs the discovery of Salmonella and advances in the understanding of vector-borne diseases.

By the 1940s, government policies had eliminated several major animal diseases, saving hundreds of thousands of lives and establishing a model for eradication that would be used around the world. Although scientific advances played a key role, government interventions did as well. Today, a dominant economic ideology frowns on government regulation of the economy, but the authors argue that in this case it was an essential force for good.

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Bending the Law
The Story of the Dalkon Shield Bankruptcy
Richard B. Sobol
University of Chicago Press, 1991
Winner of the American Bar Association's 1992 Silver Gavel Award "in recognition of an outstanding contribution to public understanding of the American system of law and justice."

"Mr. Sobol has produced a readable yet fully researched and detailed study of the operation of the bankruptcy and its effects upon all concerned—the women who were injured, the swarms of lawyers who represented parties in the bankruptcy, and the court which oversaw the bankruptcy in Richmond. . . . This book adds greatly to the current debate about how strong a managerial federal judge our system should have."—Paul D. Rheingold, New York Law Journal

"Bending the Law is polemical and relentless. It is also minutely researched, fluidly written, and persuasive."—Paul Reidinger, ABA Journal

"Bending the Law is a must read for bankruptcy practitioners, and for anyone else concerned about the use of bankruptcy law to deal with mass torts. Although its author is a civil rights lawyer, he details the subtle art of practicing bankruptcy law with a discerning eye, and is a gifted storyteller as well."—Joryn Jenkins, Federal Bar News and Journal

"This is an accessible history of the case by a veteran civil-rights lawyer."—Washington Post Book World
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Bending the Rules
Procedural Politicking in the Bureaucracy
Rachel Augustine Potter
University of Chicago Press, 2019
Who determines the fuel standards for our cars? What about whether Plan B, the morning-after pill, is sold at the local pharmacy? Many people assume such important and controversial policy decisions originate in the halls of Congress. But the choreographed actions of Congress and the president account for only a small portion of the laws created in the United States. By some estimates, more than ninety percent of law is created by administrative rules issued by federal agencies like the Environmental Protection Agency and the Department of Health and Human Services, where unelected bureaucrats with particular policy goals and preferences respond to the incentives created by a complex, procedure-bound rulemaking process.
           
With Bending the Rules, Rachel Augustine Potter shows that rulemaking is not the rote administrative activity it is commonly imagined to be but rather an intensely political activity in its own right. Because rulemaking occurs in a separation of powers system, bureaucrats are not free to implement their preferred policies unimpeded: the president, Congress, and the courts can all get involved in the process, often at the bidding of affected interest groups. However, rather than capitulating to demands, bureaucrats routinely employ “procedural politicking,” using their deep knowledge of the process to strategically insulate their proposals from political scrutiny and interference. Tracing the rulemaking process from when an agency first begins working on a rule to when it completes that regulatory action, Potter shows how bureaucrats use procedures to resist interference from Congress, the President, and the courts at each stage of the process. This exercise reveals that unelected bureaucrats wield considerable influence over the direction of public policy in the United States.
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Black Lawyers, White Courts
The Soul of South African Law
Kenneth S. Broun
Ohio University Press, 2000

In the struggle against apartheid, one often overlooked group of crusaders was the coterie of black lawyers who overcame the Byzantine system that the government established oftentimes explicitly to block the paths of its black citizens from achieving justice.

Now, in their own voices, we have the narratives of many of those lawyers as recounted in a series of oral interviews. Black Lawyers, White Courts is their story and the anti-apartheid story that has before now gone untold.

Professor Kenneth Broun conducted interviews with twenty-seven black South African lawyers. They were asked to tell about their lives, including their family backgrounds, education, careers, and their visions for the future. In many instances they also discussed their years in prison or exile, or under house arrest. Most told of both education and careers interrupted because of the ongoing struggle.

The story of the professional achievements of black lawyers in South Africa—indeed their very survival—provides an example of the triumph of individuals and, ultimately, of the law. Black Lawyers, White Courts is about South Africa, and about black professionals in that country, but the lessons its protagonists teach extend far beyond circumstances, geography, or race.

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Braking the Special Interests
Trucking Deregulation and the Politics of Policy Reform
Dorothy Robyn
University of Chicago Press, 1987
In 1980 Congress voted to eliminate the federal system of protective regulation over the powerful trucking industry, despite fierce opposition. This upset marked a rare example in American politics of diffuse public interests winning out over powerful economic lobbies. In Braking the Special Interests Dorothy Robyn draws upon firsthand observations of formal proceedings and behind-the-scenes maneuverings to illuminate the role of political strategy in the landmark trucking battle.

Robyn focuses her analysis on four elements of strategy responsible for the deregulator's victory—elements that are essential, she argues, to any successful policy battle against entrenched special interests: the effective use of economic data and analysis to make a strong case for the merits of reform; the formation and management of a diverse lobbying coalition of firms and interest groups; presidential bargaining to gain political leverage; and transition schemes to reduce uncertainty and cushion the blow to losers.

Drawing on political and economic theory, Braking the Special Interests is an immensely rich and readable study of political strategy and skill, with general insights relevant to current political battles surrounding trade, agriculture, and tax policies. Robyn's interdisciplinary work will be of great value to scholars and practitioners of politics, economics, and public policy.
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Commentaries on the Laws of England, Volume 1
A Facsimile of the First Edition of 1765-1769
William Blackstone
University of Chicago Press, 1979
Sir William Blackstone's Commentaries on the Laws of England (1765-1769) stands as the first great effort to reduce the English common law to a unified and rational system. Blackstone demonstrated that the English law as a system of justice was comparable to Roman law and the civil law of the Continent. Clearly and elegantly written, the work achieved immediate renown and exerted a powerful influence on legal education in England and in America which was to last into the late nineteenth century. The book is regarded not only as a legal classic but as a literary masterpiece.

Previously available only in an expensive hardcover set, Commentaries on the Laws of England is published here in four separate volumes, each one affordably priced in a paperback edition. These works are facsimiles of the eighteenth-century first edition and are undistorted by later interpolations. Each volume deals with a particular field of law and carries with it an introduction by a leading contemporary scholar.

In his introduction to this first volume, Of the Rights of Persons, Stanley N. Katz presents a brief history of Blackstone's academic and legal career and his purposes in writing the Commentaries. Katz discusses Blackstone's treatment of the structure of the English legal system, his attempts to justify it as the best form of government, and some of the problems he encountered in doing so.
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front cover of Commentaries on the Laws of England, Volume 2
Commentaries on the Laws of England, Volume 2
A Facsimile of the First Edition of 1765-1769
William Blackstone
University of Chicago Press, 1979
Sir William Blackstone's Commentaries on the Laws of England (1765-1769) stands as the first great effort to reduce the English common law to a unified and rational system. Blackstone demonstrated that the English law as a system of justice was comparable to Roman law and the civil law of the Continent. Clearly and elegantly written, the work achieved immediate renown and exerted a powerful influence on legal education in England and in America which was to last into the late nineteenth century. The book is regarded not only as a legal classic but as a literary masterpiece.

Previously available only in an expensive hardcover set, Commentaries on the Laws of England is published here in four separate volumes, each one affordably priced in a paperback edition. These works are facsimiles of the eighteenth-century first edition and are undistorted by later interpolations. Each volume deals with a particular field of law and carries with it an introduction by a leading contemporary scholar.

Introducing this second volume, Of the Rights of Things, A. W. Brian Simpson discusses the history of Blackstone's theory of various aspects of property rights—real property, feudalism, estates, titles, personal property, and contracts—and the work of his predecessors.
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front cover of Commentaries on the Laws of England, Volume 3
Commentaries on the Laws of England, Volume 3
A Facsimile of the First Edition of 1765-1769
William Blackstone
University of Chicago Press, 1979
Sir William Blackstone's Commentaries on the Laws of England (1765-1769) stands as the first great effort to reduce the English common law to a unified and rational system. Blackstone demonstrated that the English law as a system of justice was comparable to Roman law and the civil law of the Continent. Clearly and elegantly written, the work achieved immediate renown and exerted a powerful influence on legal education in England and in America which was to last into the late nineteenth century. The book is regarded not only as a legal classic but as a literary masterpiece.

Previously available only in an expensive hardcover set, Commentaries on the Laws of England is published here in four separate volumes, each one affordably priced in a paperback edition. These works are facsimiles of the eighteenth-century first edition and are undistorted by later interpolations. Each volume deals with a particular field of law and carries with it an introduction by a leading contemporary scholar.

Introducing this third volume, Of Private Wrongs, John H. Langbein discusses Blackstone's account of procedure and jurisdiction, jury trial, and equity. He also examines Blackstone's uneasy attitude toward the celebrated legal frictions of English civil procedure.
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front cover of Commentaries on the Laws of England, Volume 4
Commentaries on the Laws of England, Volume 4
A Facsimile of the First Edition of 1765-1769
William Blackstone
University of Chicago Press, 1979
Sir William Blackstone's Commentaries on the Laws of England (1765-1769) stands as the first great effort to reduce the English common law to a unified and rational system. Blackstone demonstrated that the English law as a system of justice was comparable to Roman law and the civil law of the Continent. Clearly and elegantly written, the work achieved immediate renown and exerted a powerful influence on legal education in England and in America which was to last into the late nineteenth century. The book is regarded not only as a legal classic but as a literary masterpiece.

Previously available only in an expensive hardcover set, Commentaries on the Laws of England is published here in four separate volumes, each one affordably priced in a paperback edition. These works are facsimiles of the eighteenth-century first edition and are undistorted by later interpolations. Each volume deals with a particular field of law and carries with it an introduction by a leading contemporary scholar.

Introducing this fourth and final volume, Of Public Wrongs, Thomas A. Green examines Blackstone's attempt to rationalize the severity of the law with what he saw as the essentially humane inspiration of English law. Green discusses Blackstone's ideas on criminal law, criminal procedure, and sentencing.
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The Constitution of the Federal Republic of Germany
David P. Currie
University of Chicago Press, 1994
A leading scholar of the constitution of the United States, David Currie, in this book turns his attention to one of the most important bodies of constitutional law in the world, the Basic Law of Germany. It is a comprehensive and accessible introduction to the study of the German constitution.

Beginning with an overview of the essential features of the Basic Law of Germany, Currie then elucidates those features by analyzing a number of decisions of the German Constitutional Court. Contrasting German constitutional law with the American model, Currie further illuminates the German system and provides an invaluable comparative perspective on American institutions, judicial methods, and constitutional principles.

The German constitutional court recently has become the object of international attention as it has grappled with controversies involving abortion, ratification of the Maastricht Treaty, and the reunification of East and West. Currie examines these issues and their impact on the German constitution.

An appendix includes (in English translation) the complete Basic Law for the Federal Republic of Germany of May 23, 1949 as amended to December 1, 1993.
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Constitutional Coup
Privatization’s Threat to the American Republic
Jon D. Michaels
Harvard University Press, 2017

Americans have a love-hate relationship with government. Rejecting bureaucracy—but not the goods and services the welfare state provides—Americans have demanded that government be made to run like a business. Hence today’s privatization revolution.

But as Jon D. Michaels shows, separating the state from its public servants, practices, and institutions does violence to our Constitution, and threatens the health and stability of the Republic. Constitutional Coup puts forward a legal theory that explains the modern welfare state as a worthy successor to the framers’ three-branch government.

What legitimates the welfare state is its recommitment to a rivalrous system of separation of powers, in which political agency heads, career civil servants, and the public writ large reprise and restage the same battles long fought among Congress, the president, and the courts. Privatization now proclaims itself as another worthy successor, this time to an administrative state that Americans have grown weary of. Yet it is a constitutional usurper. Privatization dismantles those commitments to separating and checking state power by sidelining rivalrous civil servants and public participants.

Constitutional Coup cements the constitutionality of the administrative state, recognizing civil servants and public participants as necessary—rather than disposable—components. Casting privatization as an existential constitutional threat, it underscores how the fusion of politics and profits commercializes government—and consolidates state power in ways both the framers and administrative lawyers endeavored to disaggregate. It urges—and sketches the outlines of—a twenty-first-century bureaucratic renaissance.

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The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed.
Donald P. Kommers
Duke University Press
Kommers’s comprehensive work surveys the development of German constitutional doctrine between 1949, when the Federal Constitutional Court was founded, and 1996. Extensively revised and expanded to take into account recent developments since German unification, this second edition describes the background, structure, and functions of the Court and provides extensive commentary on German constitutional interpretation, and includes translations of seventy-eight landmark decisions. These cases include the highly controversial religious liberty and free speech cases handed down in 1995.
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The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed.
Donald P. Kommers
Duke University Press
Kommers’s comprehensive work surveys the development of German constitutional doctrine between 1949, when the Federal Constitutional Court was founded, and 1996. Extensively revised and expanded to take into account recent developments since German unification, this second edition describes the background, structure, and functions of the Court and provides extensive commentary on German constitutional interpretation, and includes translations of seventy-eight landmark decisions. These cases include the highly controversial religious liberty and free speech cases handed down in 1995.
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Constitution-Making in the Region of Former Soviet Dominance
Rett R. Ludwikowski
Duke University Press, 1996
With the end of the Cold War and the disintegration of the Soviet Union, newly formed governments throughout Eastern Europe and the former Soviet states have created constitutions that provide legal frameworks for the transition to free markets and democracy. In Constitution-Making in the Region of Former Soviet Dominance, Rett R. Ludwikowski offers a comparative study of constitution-making in progress and provides insight into the complex political and social circumstances that are shaping its present and future. The first study of these recent constitutional developments, this book also provides an appendix of all newly ratified constitutions in the region, an essential new reference source for scholars, students, and professionals.
Beginning with a review of the constitutional traditions of Eastern and Central Europe, Ludwikowski goes on to offer analysis of the recent process of political change in the region. A second section focuses specifically on the the new constitutions and such issues as the selection of the form of government, concepts of divisions of power, unicameralism vs. bicameralism, the flexibility or rigidity of constitutions as working documents, and the process of reviewing the constitutionality of laws. Individual states as framed in these documents are analyzed in economic, political, and cultural terms. Although it is too soon to fully consider the implementation of these constitutions, special attention is devoted to the effect of reform on human rights protection, a notorious problem of continuing concern in the region. A final section offers an insightful comparative study of constitutional law by reviewing the post-Soviet process of constitution-making against the backdrop of Western constitutional traditions.
Constitution-Making in the Region of Former Soviet Dominance is both a comprehensive study of constitutional developments in the former Soviet bloc and a primary reference tool for scholars of constitutional law, and Eastern European and post-Soviet studies.
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Distorting the Law
Politics, Media, and the Litigation Crisis
William Haltom and Michael McCann
University of Chicago Press, 2004
In recent years, stories of reckless lawyers and greedy citizens have given the legal system, and victims in general, a bad name. Many Americans have come to believe that we live in the land of the litigious, where frivolous lawsuits and absurdly high settlements reign.

Scholars have argued for years that this common view of the depraved ruin of our civil legal system is a myth, but their research and statistics rarely make the news. William Haltom and Michael McCann here persuasively show how popularized distorted understandings of tort litigation (or tort tales) have been perpetuated by the mass media and reform proponents. Distorting the Law lays bare how media coverage has sensationalized lawsuits and sympathetically portrayed corporate interests, supporting big business and reinforcing negative stereotypes of law practices.

Based on extensive interviews, nearly two decades of newspaper coverage, and in-depth studies of the McDonald's coffee case and tobacco litigation, Distorting the Law offers a compelling analysis of the presumed litigation crisis, the campaign for tort law reform, and the crucial role the media play in this process.
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Equal Justice
Fair Legal Systems in an Unfair World
Frederick Wilmot-Smith
Harvard University Press, 2019

A philosophical and legal argument for equal access to good lawyers and other legal resources.

Should your risk of wrongful conviction depend on your wealth? We wouldn’t dream of passing a law to that effect, but our legal system, which permits the rich to buy the best lawyers, enables wealth to affect legal outcomes. Clearly justice depends not only on the substance of laws but also on the system that administers them.

In Equal Justice, Frederick Wilmot-Smith offers an account of a topic neglected in theory and undermined in practice: justice in legal institutions. He argues that the benefits and burdens of legal systems should be shared equally and that divergences from equality must issue from a fair procedure. He also considers how the ideal of equal justice might be made a reality. Least controversially, legal resources must sometimes be granted to those who cannot afford them. More radically, we may need to rethink the centrality of the market to legal systems. Markets in legal resources entrench pre-existing inequalities, allocate injustice to those without means, and enable the rich to escape the law’s demands. None of this can be justified. Many people think that markets in health care are unjust; it may be time to think of legal services in the same way.

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Equality for Same-Sex Couples
The Legal Recognition of Gay Partnerships in Europe and the United States
Yuval Merin
University of Chicago Press, 2002
During the past three decades, nations all over the world have been debating whether to allow same-sex couples to marry, or at least grant these couples various rights associated with marriage. In Equality for Same-Sex Couples, Yuval Merin presents the first comparative study of the legal regulation of same-sex partnerships worldwide, as well as a unique survey of the status of same-sex couples in Europe.

Merin begins by providing a historical overview of the transformation of marriage from antiquity to the present. He then identifies and critically compares four principal models for the legal regulation and recognition of same-sex partnerships: civil marriage, registered partnership, domestic partnership, and cohabitation. Merin concludes that all of the models except civil marriage discriminate against gays and lesbians just as the "separate but equal" doctrine discriminated against African Americans; thus, so-called alternatives to marriage, even if they provide the same rights and benefits as marriage, are inherently unequal and therefore unconstitutional.
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Fact and Fancy in Television Regulation
An Economic Study of Policy Alternatives
Harvey J. Levin
Russell Sage Foundation, 1980
How diverse can, and should, TV programming be? And especially, in what precise ways does governmental regulation of TV affect (or fail to affect) the programs station owners produce—programs which, in the final analysis, shape in such large measure the values of Americans? It is to these timely and beguiling questions that Harvey Levin addresses his dispassionate assessment of the complex relationship between government and the TV industry. Analyzing data drawn from the history of the FCC's regulatory decisions, as well as from interviews with numerous government and industry officials, Professor Levin shows how the present form of restrictive governmental regulation almost always results in higher profits and rents for TV stations, with no concomitant increase in programming diversity. In addition, Professor Levin investigates various other aspects of the media market, from the particular kinds of crucial decisions that are made when, for example, a newspaper owns a TV station, to the kinds of problems that arise when commercial rents are taxed to fund public TV; from the brand of programming we are offered when a monopoly controls a given TV market to the nature of programming in a situation of steady and fair competition. Following a comprehensive assessment, the author makes a compelling case for diversification of station ownership, in order to be "safe rather than sorry." He also argues for the entry of new stations, more extensive support of public TV, and some form of quantitative program requirements—all of which will help bring about greater program diversity. Professor Levin's volume provides us with a fully documented and sharply focused analysis of the theories, policies, and problems of one of the most powerful and misunderstood of contemporary institutions.
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The Flow of Illicit Funds
A Case Study Approach to Anti–Money Laundering Compliance
Georgetown University Press, 2022

High-profile case studies provide compliance professionals with a deep, holistic understanding of modern-day money laundering to better detect and deter it

Money laundering is a serious crime that presents a heightened, yet underrated, global threat. Although often thought of as a victimless crime, money laundering significantly impacts the global financial system, which leads to further crime, corruption, human exploitation, and environmental degradation and causes tremendous human suffering, especially in the most impoverished populations. Recent advances in technology, communications, and globalization mean there are more illicit funds in circulation today than ever before. In order to catch these criminals and expose their underground networks, compliance professionals must learn to navigate an increasingly complex web of criminal activity.

In The Flow of Illicit Funds, Ola M. Tucker goes beyond the implementation of anti–money laundering compliance programs offered by most guides and provides professionals with a holistic understanding of the modern money laundering system. Using recent case studies, Tucker explains some of the most common money laundering techniques used by criminals today, describes the key role of the financial system in the disguise and transfer of illicit funds, and offers valuable insight into how financial institutions can protect themselves from being used as conduits for the movement of dirty money. The book concludes by offering suggestions to help compliance professionals better detect and deter money laundering.

Through this unique perspective, compliance professionals and students will gain a broader overall understanding of the process of money laundering and the techniques criminals commonly use, including valuable insight into how criminals find legal loopholes and manipulate the financial system.

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Governing Nonprofit Organizations
Federal and State Law and Regulation
Marion R. Fremont-Smith
Harvard University Press, 2008

The nonprofit sector is a vital component of our society and is allowed the greatest freedom to operate. The public understandably assumes that since nonprofit organizations are established to do good, the people who run nonprofits are altruistic, and the laws governing nonprofits have reflected this assumption. But as Marion Fremont-Smith argues, the rules that govern how nonprofits operate are inadequate, and the regulatory mechanisms designed to enforce the rules need improvement.

Despite repeated instances of negligent management, self-interest at the expense of the charity, and outright fraud, nonprofits continue to receive minimal government regulation. In this time of increased demand for corporate accountability, the need to strengthen regulation of nonprofits is obvious. Fremont-Smith addresses this need from a historical, legal, and organizational perspective. She combines summaries and analysis of the substantive legal rules governing the behavior of charitable officers, directors, and trustees with descriptions of the federal and state regulatory schemes designed to enforce these rules. Her unique and exhaustive historical survey of the law of nonprofit organizations provides a foundation for her analysis of the effectiveness of current law and proposals for its improvement.

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Government by Contract
Outsourcing and American Democracy
Jody Freeman
Harvard University Press, 2009

The dramatic growth of government over the course of the twentieth century since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government’s costs, efficiency, and quality of service. These concerns, combined with rising confidence in private markets, motivate the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. “Government by contract” now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects.

Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values?

Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns.

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The History of the Common Law of England
Sir Matthew Hale
University of Chicago Press, 1973
This volume includes the complete text of the third edition of 1739.
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Holding Bishops Accountable
How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse
Timothy D. Lytton
Harvard University Press, 2008

The sexual abuse of children by Catholic clergy is arguably the most acute crisis Catholicism has faced since the Reformation. The prevalence of clergy sexual abuse and its shocking cover-up by church officials have obscured the largely untold story of the tort system’s remarkable success in bringing the scandal to light, focusing attention on the need for institutional reform, and spurring church leaders and public officials into action.

Stories of the tort system as an engine of social justice are rare. Holding Bishops Accountable tells one such story by revealing how pleadings, discovery documents, and depositions fueled media coverage of the scandal. Timothy Lytton shows how the litigation strategy of plaintiffs’ lawyers gave rise to a widespread belief that the real problem was not the actions of individual priests but rather the church’s massive institutional failure. The book documents how church and government policymakers responded to the problem of clergy sexual abuse only under the pressure of private lawsuits.

As Lytton deftly demonstrates, the lessons of clergy sexual abuse litigation give us reason to reconsider the case for tort reform and to look more closely at how tort litigation can enhance the performance of public and private policymaking institutions.

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The Hunters or the Hunted?
An Introduction to African Cave Taphonomy
C. K. Brain
University of Chicago Press, 1981
"Amongst scientists involved [in taphonomy], C. K. Brain stands out as the pioneer; this impressive book is a statement of his investigations. . . . The Hunters or the Hunted? is a very important book for paleoanthropology. It presents the first thorough analysis of the Sterkfontein Valley assemblages, contributes significantly to the resolution of lingering controversies and, by placing the old information in a fresh perspective, enables new and more sophisticated questions to be asked not only of the South African material but of similar assemblages elsewhere. Another contribution is that it reinforces the recent change in feelings as to what constitutes data, for the value of looking at fossil and contemporary bones as closely as this is clear. Brain urges the necessity of recovering fossils with a high regard for subtle detail. I hope excavators of any vertebrate fossil site will be persuaded to follow his advice and pay more attention to these features of bone accumulations that have been previously neglected; for taphonomy can be a powerful tool in elucidating the problems of fossil assemblages, especially when handled with the care and caution that Brain brings to the subject."—Andrew Hill, Nature
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front cover of The Illusion of Equality
The Illusion of Equality
The Rhetoric and Reality of Divorce Reform
Martha Albertson Fineman
University of Chicago Press, 1991
How do "no-fault," "gender-neutral" divorce reforms actually harm the lives of women and children they are designed to protect? Focusing on the language and symbols of reform, Martha Fineman argues that by advocating measures based on equality of treatment rather than of outcome, liberal feminists disregarded the socioeconomic factors that simultaneously place women at a disadvantage in the market and favor their taking on primary domestic responsibilities. She traces in persuasive detail the detrimental effects of equality rhetoric in shaping divorce law — such as the legal separation of parents' and children's interests; equality replacing need as the prime criterion for settlements; and the increase of state intervention into family life. More than a critique, this book is an incisive argument for adopting outcome-oriented measures and a valuable overview of the pitfalls of uncritically implementing any rhetoric as social policy.
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Is Administrative Law Unlawful?
Philip Hamburger
University of Chicago Press, 2014
Is administrative law unlawful? This provocative question has become all the more significant with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society.

With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent.

With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.
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Japanese Law
An Economic Approach
J. Mark Ramseyer and Minoru Nakazato
University of Chicago Press, 1998
In this introduction to Japanese law, J. Mark Ramseyer and Minoru Nakazato combine an economic approach with a clear and often amusing account of the law itself to challenge commonly held ideas about the law. Arguing against such things as the assumption that Japanese law differs from law in the United States and the idea that law plays only a trivial role in Japan or is culturally determined, this book will be recognized as a major contribution to the understanding of Japanese law.

"A compelling economic analysis. . . . This book remains one of the few concerning Japanese law that successfully brings to life the legal culture of Japan." —Bonnie L. Dixon, New York Law Journal
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Justice and Public Administration
Charles F. Abel and Arthur J. Sementelli
University of Alabama Press, 2007
Justice and Administration is an ambitious effort to grapple with justice as a theoretical component of the practice of public administration, yet with sufficient theoretical power to be meaningful in philosophy, political studies, and sociology.
 
The time is ripe for such an effort, as the questions that gather under the labels of modernity, the postmodern and critical theory now transcend a single discipline. The work of John Rawls on justice in public life has had a generation of influence on scholarship, and this work seems to have a high degree of likelihood of making meaningful statements on these questions in the field.
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Kosher
Private Regulation in the Age of Industrial Food
Timothy D. Lytton
Harvard University Press, 2013

Generating over $12 billion in annual sales, kosher food is big business. It is also an unheralded story of successful private-sector regulation in an era of growing public concern over the government’s ability to ensure food safety. Kosher uncovers how independent certification agencies rescued American kosher supervision from fraud and corruption and turned it into a model of nongovernmental administration.

Currently, a network of over three hundred private certifiers ensures the kosher status of food for over twelve million Americans, of whom only eight percent are religious Jews. But the system was not always so reliable. At the turn of the twentieth century, kosher meat production in the United States was notorious for scandals involving price-fixing, racketeering, and even murder. Reform finally came with the rise of independent kosher certification agencies which established uniform industry standards, rigorous professional training, and institutional checks and balances to prevent mistakes and misconduct.

In overcoming many of the problems of insufficient resources and weak enforcement that hamper the government, private kosher certification holds important lessons for improving food regulation, Timothy Lytton argues. He views the popularity of kosher food as a response to a more general cultural anxiety about industrialization of the food supply. Like organic and locavore enthusiasts, a growing number of consumers see in rabbinic supervision a way to personalize today’s vastly complex, globalized system of food production.

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Law and Leviathan
Redeeming the Administrative State
Cass R. Sunstein and Adrian Vermeule
Harvard University Press, 2020

Winner of the Scribes Book Award

“As brilliantly imaginative as it is urgently timely.”
—Richard H. Fallon, Jr., Harvard Law School


“At no time more than the present, a defense of expertise-based governance and administration is sorely needed, and this book provides it with gusto.”
—Frederick Schauer, author of The Proof


A highly original framework for restoring confidence in a government bureaucracy increasingly derided as “the deep state.”

Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? America has long been divided over these questions, but the debate has recently taken on more urgency and spilled into the streets. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed so long as public officials are constrained by morality and guided by stable rules. Officials should make clear rules, ensure transparency, and never abuse retroactivity, so that current guidelines are not under constant threat of change. They should make rules that are understandable and avoid issuing contradictory ones.

These principles may seem simple, but they have a great deal of power. Already, they limit the activities of administrative agencies every day. In more robust form, they could address some of the concerns of critics who decry the “deep state” and yearn for its downfall.

“Has something to offer both critics and supporters…a valuable contribution to the ongoing debate over the constitutionality of the modern state.”
Review of Politics

“The authors freely admit that the administrative state is not perfect. But, they contend, it is far better than its critics allow.”
Wall Street Journal

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The Law and Policy of Ecosystem Services
J. B. Ruhl, Steven E. Kraft, and Christopher L. Lant
Island Press, 2007
The Law and Policy of Ecosystem Services is the first comprehensive exploration of the status and future of natural capital and ecosystem services in American law and policy. The book develops a framework for thinking about ecosystem services across their ecologic, geographic, economic, social, and legal dimensions and evaluates the prospects of crafting a legal infrastructure that can help build an ecosystem service economy that is as robust as existing economies for manufactured goods, natural resource commodities, and human-provided services. The book examines the geographic, ecological, and economic context of ecosystem services and provides a baseline of the current status of ecosystem services in law and society. It identifies shortcomings of current law and policy and the critical areas for improvement and forges an approach for the design of new law and policy for ecosystem services.
Included are a series of nine empirical case studies that explore the problems caused by society’s failure to properly value natural capital. Among the case study topics considered are water issues, The Conservation Reserve Program, the National Conservation Buffer Initiative, the agricultural policy of the European Union, wetland mitigation, and pollution trading.
The Law and Policy of Ecosystem Services is a groundbreaking look at the question of whether and how law and policy can shape a sustainable system of ecosystem service management. It is an accessible and informative work for faculty, students, and policy makers concerned with ecology, economics, geography, political science, environmental studies, law, and related fields.
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Law, Sex, and Christian Society in Medieval Europe
James A. Brundage
University of Chicago Press, 1987
This monumental study of medieval law and sexual conduct explores the origin and develpment of the Christian church's sex law and the systems of belief upon which that law rested. Focusing on the Church's own legal system of canon law, James A. Brundage offers a comprehensive history of legal doctrines–covering the millennium from A.D. 500 to 1500–concerning a wide variety of sexual behavior, including marital sex, adultery, homosexuality, concubinage, prostitution, masturbation, and incest. His survey makes strikingly clear how the system of sexual control in a world we have half-forgotten has shaped the world in which we live today. The regulation of marriage and divorce as we know it today, together with the outlawing of bigamy and polygamy and the imposition of criminal sanctions on such activities as sodomy, fellatio, cunnilingus, and bestiality, are all based in large measure upon ideas and beliefs about sexual morality that became law in Christian Europe in the Middle Ages.

"Brundage's book is consistently learned, enormously useful, and frequently entertaining. It is the best we have on the relationships between theological norms, legal principles, and sexual practice."—Peter Iver Kaufman, Church History
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The Law under the Swastika
Studies on Legal History in Nazi Germany
Michael Stolleis
University of Chicago Press, 1997
In the Law under the Swastika, Michael Stolleis examines the evolution of legal history, theory, and practice in Nazi Germany, paying close attention to its impact on the Federal Republic and on the German legal profession. Until the late 1960s, historians of the Nazi judicial system were mostly judges and administrators from the Nazi era. According to Stolleis, they were reluctant to investigate this legal history and maintained the ideal that law could not be affected by politics. Michael Stolleis is part of a younger generation and is determined to honestly confront the past in hopes of preventing the same injustices from happening in the future.

Stolleis studies a wide range of legal fields—constitutional, judicial, agrarian, administrative, civil, and business—arguing that all types of law were affected by the political realities of National Socialism. Moreover, he shows that legal traditions were not relinquished immediately with the onset of a new regime. For the first time we can see clearly the continuities between the Nazi period and the postwar period. The law under National Socialism did not make a complete break with the law during the Weimar Republic, nor did the law of the Federal Republic nullify all of the laws under National Socialism. Through a rich and subtle investigation, Stolleis shows how the legal profession and the political regime both reacted to the conditions of the period and molded the judicial system accordingly.

Breaking the conspiracy of silence held by the justices in the postwar period, Stolleis stresses the importance of researching Nazi law in order to confront ethical problems in today's legal profession.
[more]

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Law’s Abnegation
From Law’s Empire to the Administrative State
Adrian Vermeule
Harvard University Press, 2016

Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons.

In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action.

As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.

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The Lecherous Professor
Sexual Harassment on Campus
Billie Wright Dziech and Linda Weiner
University of Illinois Press, 1990
How does society view and define sexual harassment of students by academicians? Does the collegiate environment exacerbate the problem and contribute to its current epidemic proportions? What can students, faculty, and administrators do about the problem? The Lecherous Professor addresses these timely issues, including the dilemma of teacher-student dating, newly devised policy statements on sexual harassment from several institutions, and faculty uneasiness about administrative directives on sexual harassment.
 
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Making Fathers Pay
The Enforcement of Child Support
David L. Chambers
University of Chicago Press, 1979
A couple with children divorce. A court orders the father to pay child support, but the father fails to pay. This pattern repeats itself thousands of times every year in nearly every American state.

Making Fathers Pay is David L. Chambers's study of the child-support collection process in Michigan, the state most successful in inducing fathers to pay. He begins by reporting the perilous financial problems of divorced mothers with children, problems faced even by mothers who work full time and receive child support. The study then examines the characteristics of fathers who do and do not pay support and the characteristics of collections systems that work.

Chambers's findings are based largely on records of fathers' support payments in twenty-eight Michigan counties, some of which jail hundreds of men for nonpayment every year. Chambers finds that in places well organized to collect support, jailing nonpayers seems to produce higher payments from men jailed and from men not jailed, but only at a high social cost. He also raises grave doubts about the fairness of the judicial process that leads to jail. While Chambers's total sample includes 12,000 men, he interweaves through his text moving interviews with members of one family caught in the painful predicaments that men, women, and children face upon separation.

To increase support for children at lower social costs, Chambers advocates a national system of compulsory deductions from the wages of non-custodial parents who earn more than enough for their own subsistence.

 
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The Making of Environmental Law
Richard J. Lazarus
University of Chicago Press, 2004
The unprecedented expansion in environmental regulation over the past thirty years—at all levels of government—signifies a transformation of our nation's laws that is both palpable and encouraging. Environmental laws now affect almost everything we do, from the cars we drive and the places we live to the air we breathe and the water we drink. But while enormous strides have been made since the 1970s, gaps in the coverage, implementation, and enforcement of the existing laws still leave much work to be done.

In The Making of Environmental Law, Richard J. Lazarus offers a new interpretation of the past three decades of this area of the law, examining the legal, political, cultural, and scientific factors that have shaped—and sometimes hindered—the creation of pollution controls and natural resource management laws. He argues that in the future, environmental law must forge a more nuanced understanding of the uncertainties and trade-offs, as well as the better-organized political opposition that currently dominates the federal government. Lazarus is especially well equipped to tell this story, given his active involvement in many of the most significant moments in the history of environmental law as a litigator for the Justice Department's Environment and Natural Resources Division, an assistant to the Solicitor General, and a member of advisory boards of the U.S. Environmental Protection Agency, the World Wildlife Fund, and the Environmental Defense Fund.

Ranging widely in his analysis, Lazarus not only explains why modern environmental law emerged when it did and how it has evolved, but also points to the ambiguities in our current situation. As the field of environmental law "grays" with middle age, Lazarus's discussions of its history, the lessons learned from past legal reforms, and the challenges facing future lawmakers are both timely and invigorating.
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The Marriage Exchange
Property, Social Place, and Gender in Cities of the Low Countries, 1300-1550
Martha C. Howell
University of Chicago Press, 1998
Medieval Douai was one of the wealthiest cloth towns of Flanders, and it left an enormous archive documenting the personal financial affairs of its citizens—wills, marriage agreements, business contracts, and records of court disputes over property rights of all kinds.

Based on extensive research in this archive, this book reveals how these documents were produced in a centuries-long effort to regulate—and ultimately to redefine—property and gender relations. At the center of the transformation was a shift from a marital property regime based on custom to one based on contract. In the former, a widow typically inherited her husband's property; in the latter, she shared it with or simply held it for his family or offspring. Howell asks why the law changed as it did and assesses the law's effects on both social and gender meanings but she insists that the reform did not originate in general dissatisfaction with custom or a desire to disempower widows. Instead, it was born in a complex economic, social and cultural history during which Douaisiens gradually came to think about both property and gender in new ways.
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New Democracy
The Creation of the Modern American State
William J. Novak
Harvard University Press, 2022

The activist state of the New Deal started forming decades before the FDR administration, demonstrating the deep roots of energetic government in America.

In the period between the Civil War and the New Deal, American governance was transformed, with momentous implications for social and economic life. A series of legal reforms gradually brought an end to nineteenth-century traditions of local self-government and associative citizenship, replacing them with positive statecraft: governmental activism intended to change how Americans lived and worked through legislation, regulation, and public administration. The last time American public life had been so thoroughly altered was in the late eighteenth century, at the founding and in the years immediately following.

William J. Novak shows how Americans translated new conceptions of citizenship, social welfare, and economic democracy into demands for law and policy that delivered public services and vindicated people’s rights. Over the course of decades, Americans progressively discarded earlier understandings of the reach and responsibilities of government and embraced the idea that legislators and administrators in Washington could tackle economic regulation and social-welfare problems. As citizens witnessed the successes of an energetic, interventionist state, they demanded more of the same, calling on politicians and civil servants to address unfair competition and labor exploitation, form public utilities, and reform police power.

Arguing against the myth that America was a weak state until the New Deal, New Democracy traces a steadily aggrandizing authority well before the Roosevelt years. The United States was flexing power domestically and intervening on behalf of redistributive goals for far longer than is commonly recognized, putting the lie to libertarian claims that the New Deal was an aberration in American history.

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Outbreak
Foodborne Illness and the Struggle for Food Safety
Timothy D. Lytton
University of Chicago Press, 2019
Foodborne illness is a big problem. Wash those chicken breasts, and you’re likely to spread Salmonella to your countertops, kitchen towels, and other foods nearby. Even salad greens can become biohazards when toxic strains of E. coli inhabit the water used to irrigate crops. All told, contaminated food causes 48 million illnesses, 128,000 hospitalizations, and 3,000 deaths each year in the United States.
           
With Outbreak, Timothy D. Lytton provides an up-to-date history and analysis of the US food safety system. He pays particular attention to important but frequently overlooked elements of the system, including private audits and liability insurance.

Lytton chronicles efforts dating back to the 1800s to combat widespread contamination by pathogens such as E. coli and salmonella that have become frighteningly familiar to consumers. Over time, deadly foodborne illness outbreaks caused by infected milk, poison hamburgers, and tainted spinach have spurred steady scientific and technological advances in food safety. Nevertheless, problems persist. Inadequate agency budgets restrict the reach of government regulation. Pressure from consumers to keep prices down constrains industry investments in safety. The limits of scientific knowledge leave experts unable to assess policies’ effectiveness and whether measures designed to reduce contamination have actually improved public health. Outbreak offers practical reforms that will strengthen the food safety system’s capacity to learn from its mistakes and identify cost-effective food safety efforts capable of producing measurable public health benefits.
 
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Purchasing Submission
Conditions, Power, and Freedom
Philip Hamburger
Harvard University Press, 2021

From a leading constitutional scholar, an important study of a powerful mode of government control: the offer of money and other privileges to secure submission to unconstitutional power.

The federal government increasingly regulates by using money and other benefits to induce private parties and states to submit to its conditions. It thereby enjoys a formidable power, which sidesteps a wide range of constitutional and political limits.

Conditions are conventionally understood as a somewhat technical problem of “unconstitutional conditions”—those that threaten constitutional rights—but at stake is something much broader and more interesting. With a growing ability to offer vast sums of money and invaluable privileges such as licenses and reduced sentences, the federal government increasingly regulates by placing conditions on its generosity. In this way, it departs not only from the Constitution’s rights but also from its avenues of binding power, thereby securing submission to conditions that regulate, that defeat state laws, that commandeer and reconfigure state governments, that extort, and even that turn private and state institutions into regulatory agents.

The problem is expansive, including almost the full range of governance. Conditions need to be recognized as a new mode of power—an irregular pathway—by which government induces Americans to submit to a wide range of unconstitutional arrangements.

Purchasing Submission is the first book to recognize this problem. It explores the danger in depth and suggests how it can be redressed with familiar and practicable legal tools.

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Regulatory Justice
Implementing a Wage-Price Freeze
Robert A. Kagan
Russell Sage Foundation, 1978
Regulatory Justice is based on a case study of two closely linked federal agencies—the Cost of Living Council (CLC) and the Office of Emergency Preparedness (OEP)—which administered a nationwide wage-price freeze in 1971.
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The Regulatory Process
With Illustrations from Commercial Aviation
By Emmette S. Redford
University of Texas Press, 1969

The subject of regulation is one of the most vital and troublesome in our system of government. In this detailed study of early and mid-twentieth-century regulation of commercial aviation Emmette S. Redford illustrates what happens when government regulates a particular industry.

He first sets forth the perspectives for a study of an area of regulation and develops an argument for eclectic perspectives in the study of selected systems, or universes, of social action, such as the performance of an economic function under government regulation.

These perspectives are illustrated in the following series of case studies on regulation of commercial aviation:

  1. The significance of belief patterns on the content of the Civil Aeronautics Act of 1938.
  2. The role of Congress in the regulation of commercial aviation in a two-year period.
  3. The interactions of Congress, the president, and the regulated industry in strengthening safety regulation through passage of the Federal Aviation Act of 1958.
  4. The actions of the Civil Aeronautics Board on a set of complicated economic issues in the General Passenger Fare Investigation.
  5. The position of the Air Transport Association in the regulatory pattern.

In "An Essay on Evaluation" Redford summarizes what is revealed in the case studies that is significant with respect to the system of government regulation. He searches for standards for evaluating a system of social control, or for evaluating parts of it, and relates his conclusions to issues regarding the beneficence of a system of regulated private supply of a service.

The Regulatory Process is a study of interest to the aviation industry, to students of regulation of the economy, and to those who seek an understanding of social systems.

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Simple Rules for a Complex World
Richard A. Epstein
Harvard University Press, 1995

Too many laws, too many lawyers--that's the necessary consequence of a complex society, or so conventional wisdom has it. Countless pundits insist that any call for legal simplification smacks of nostalgia, sentimentality, or naiveté. But the conventional view, the noted legal scholar Richard Epstein tells us, has it exactly backward. The richer texture of modern society allows for more individual freedom and choice. And it allows us to organize a comprehensive legal order capable of meeting the technological and social challenges of today on the basis of just six core principles. In this book, Epstein demonstrates how.

The first four rules, which regulate human interactions in ordinary social life, concern the autonomy of the individual, property, contract, and tort. Taken together these rules establish and protect consistent entitlements over all resources, both human and natural. These rules are backstopped by two more rules that permit forced exchanges on payment of just compensation when private or public necessity so dictates. Epstein then uses these six building blocks to clarify many intractable problems in the modern legal landscape. His discussion of employment contracts explains the hidden virtues of contracts at will and exposes the crippling weaknesses of laws regarding collective bargaining, unjust dismissal, employer discrimination, and comparable worth. And his analysis shows how laws governing liability for products and professional services, corporate transactions, and environmental protection have generated unnecessary social strife and economic dislocation by violating these basic principles.

Simple Rules for a Complex World offers a sophisticated agenda for comprehensive social reform that undoes much of the mischief of the modern regulatory state. At a time when most Americans have come to distrust and fear government at all levels, Epstein shows how a consistent application of economic and political theory allows us to steer a middle path between too much and too little.

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Smart Citizens, Smarter State
The Technologies of Expertise and the Future of Governing
Beth Simone Noveck
Harvard University Press, 2015

Government “of the people, by the people, for the people” expresses an ideal that resonates in all democracies. Yet poll after poll reveals deep distrust of institutions that seem to have left “the people” out of the governing equation. Government bureaucracies that are supposed to solve critical problems on their own are a troublesome outgrowth of the professionalization of public life in the industrial age. They are especially ill-suited to confronting today’s complex challenges.

Offering a far-reaching program for innovation, Smart Citizens, Smarter State suggests that public decisionmaking could be more effective and legitimate if government were smarter—if our institutions knew how to use technology to leverage citizens’ expertise. Just as individuals use only part of their brainpower to solve most problems, governing institutions make far too little use of the skills and experience of those inside and outside of government with scientific credentials, practical skills, and ground-level street smarts. New tools—what Beth Simone Noveck calls technologies of expertise—are making it possible to match the supply of citizen expertise to the demand for it in government.

Drawing on a wide range of academic disciplines and practical examples from her work as an adviser to governments on institutional innovation, Noveck explores how to create more open and collaborative institutions. In so doing, she puts forward a profound new vision for participatory democracy rooted not in the paltry act of occasional voting or the serendipity of crowdsourcing but in people’s knowledge and know-how.

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Statutory Default Rules
How to Interpret Unclear Legislation
Einer Elhauge
Harvard University Press, 2008

Most new law is statutory law; that is, law enacted by legislators. An important question, therefore, is how should this law be interpreted by courts and agencies, especially when the text of a statute is not entirely clear. There is a great deal of scholarly literature on the rules and legal materials courts should use in interpreting statutes. This book takes a fresh approach by focusing instead on what judges should do once the legal materials fail to resolve the interpretive question. It challenges the common assumption that in such cases judges should exercise interstitial lawmaking power. Instead, it argues that--wherever one believes the interpretive inquiry has failed to resolve the statutory meaning--judges can and should use statutory default rules that are designed to maximize the satisfaction of enactable political preferences; that is, the political preferences of the polity that are shared among enough elected officials that they could and would be enacted into law if the issue were on the legislative agenda.

These default rules explain many recent high-profile cases, including the Guantánamo detainees case, the sentencing guidelines case, the decision denying the FDA authority to regulate cigarettes, and the case that refused to allow the attorney general to criminalize drugs used in physician-assisted suicide.

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When Formality Works
Authority and Abstraction in Law and Organizations
Arthur L. Stinchcombe
University of Chicago Press, 2001
In this innovative exploration of the concept of formality, or governing by abstraction, Arthur Stinchcombe breathes new life into an idea that scholars have all but ignored in recent years.

We have come to assume that governing our social activities by advance planning—by creating abstract descriptions of what ought to happen and adjusting these descriptions as situations change—is not as efficient and responsive as dealing directly with the real substance of the situation at hand. Stinchcombe argues the opposite. When a plan is designed to correct itself and keep up with the reality it is meant to govern, it can be remarkably successful. He points out a wide range of examples where this is the case, including architectural blueprints, immigration law, the construction of common law by appeals courts, Fannie Mae's secondary mortgage market, and scientific paradigms and programs.

Arguing that formality has been misconceived as consisting mainly of its defects, Stinchcombe shows how formality, at its best, can serve us much better than ritual obedience to poorly laid plans or a romantic appeal to "real life."
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