Listing every right that a constitution should protect is hard. American constitution drafters often list a few famous rights such as freedom of speech, protection against unreasonable searches and seizures, and free exercise of religion, plus a handful of others. However, we do not need to enumerate every liberty because there is another way to protect them: an "etcetera clause." It states that there are other rights beyond those specifically listed: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Yet scholars are divided on whether the Ninth Amendment itself actually does protect unenumerated rights, and the Supreme Court has almost entirely ignored it. Regardless of what the Ninth Amendment means, two-thirds of state constitutions have equivalent provisions, or "Baby Ninth Amendments," worded similarly to the Ninth Amendment.
This book is the story of how the "Baby Ninths" came to be and what they mean. Unlike the controversy surrounding the Ninth Amendment, the meaning of the Baby Ninths is straightforward: they protect individual rights that are not otherwise enumerated. They are an "etcetera, etcetera" at the end of a bill of rights. This book argues that state judges should do their duty and live up to their own constitutions to protect the rights "retained by the people" that these "etcetera clauses" are designed to guarantee. The fact that Americans have adopted these provisions so many times in so many states demonstrates that unenumerated rights are not only protected by state constitutions, but that they are popular. Unenumerated rights are not a weird exception to American constitutional law. They are at the center of it. We should start treating constitutions accordingly.
Listing every right that a constitution should protect is hard. American constitution drafters often list a few famous rights such as freedom of speech, protection against unreasonable searches and seizures, and free exercise of religion, plus a handful of others. However, we do not need to enumerate every liberty because there is another way to protect them: an "etcetera clause." It states that there are other rights beyond those specifically listed: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Yet scholars are divided on whether the Ninth Amendment itself actually does protect unenumerated rights, and the Supreme Court has almost entirely ignored it. Regardless of what the Ninth Amendment means, two-thirds of state constitutions have equivalent provisions, or "Baby Ninth Amendments," worded similarly to the Ninth Amendment.
This book is the story of how the "Baby Ninths" came to be and what they mean. Unlike the controversy surrounding the Ninth Amendment, the meaning of the Baby Ninths is straightforward: they protect individual rights that are not otherwise enumerated. They are an "etcetera, etcetera" at the end of a bill of rights. This book argues that state judges should do their duty and live up to their own constitutions to protect the rights "retained by the people" that these "etcetera clauses" are designed to guarantee. The fact that Americans have adopted these provisions so many times in so many states demonstrates that unenumerated rights are not only protected by state constitutions, but that they are popular. Unenumerated rights are not a weird exception to American constitutional law. They are at the center of it. We should start treating constitutions accordingly.
As counsel for Pennzoil's successful effort to recover billions of dollars in damages from Texaco over the acquisition of Getty Oil Company, the Baker & Botts law firm of Houston, Texas, achieved wide public recognition in the 1980s. But among its peers in the legal and corporate worlds, Baker & Botts has for more than a century held a preeminent position, handling the legal affairs of such blue-chip clients as the Southern Pacific Railroad, Houston Lighting & Power Company, Rice University, Texas Commerce Bank, and Tenneco. In this study, Kenneth J. Lipartito and Joseph A. Pratt chronicle the history of Baker & Botts, placing particular emphasis on the firm's role in Houston's economic development.
Founded in 1840, Baker & Botts literally grew up with Houston. The authors chart its evolution from a nineteenth-century regional firm that represented eastern-based corporations moving into Texas to a twentieth-century national firm with clients throughout the world. They honestly discuss the criticisms that Baker & Botts has faced as an advocate of big business. But they also identify the important impact that corporate law firms of this type have on business reorganization and government regulation. As the authors demonstrate in this case study, law firms throughout the twentieth century have helped to shape public policy in these critical areas.
Always prominent in the community, and with prominent connections (former Secretary of State James A. Baker III is the great-grandson of the original Baker), the Baker & Botts law firm belongs in any history of the development of Houston and the Southwest.
Scientific advances and economic forces have converged to create something unthinkable for much of human history: a robust market in human body products. Every year, countless Americans supply blood, sperm, and breast milk to “banks” that store these products for later use by strangers in routine medical procedures. These exchanges entail complicated questions. Which body products are donated and which sold? Who gives and who receives? And, in the end, who profits? In this eye-opening study, Kara Swanson traces the history of body banks from the nineteenth-century experiments that discovered therapeutic uses for body products to twenty-first-century websites that facilitate a thriving global exchange.
More than a metaphor, the “bank” has shaped ongoing controversies over body products as either marketable commodities or gifts donated to help others. A physician, Dr. Bernard Fantus, proposed a “bank” in 1937 to make blood available to all patients. Yet the bank metaphor labeled blood as something to be commercially bought and sold, not communally shared. As blood banks became a fixture of medicine after World War II, American doctors made them a front line in their war against socialized medicine. The profit-making connotations of the “bank” reinforced a market-based understanding of supply and distribution, with unexpected consequences for all body products, from human eggs to kidneys.
Ultimately, the bank metaphor straitjacketed legal codes and reinforced inequalities in medical care. By exploring its past, Banking on the Body charts the path to a more efficient and less exploitative distribution of the human body’s life-giving potential.
As readers of classic Russian literature know, the nineteenth century was a time of pervasive financial anxiety. With incomes erratic and banks inadequate, Russians of all social castes were deeply enmeshed in networks of credit and debt. The necessity of borrowing and lending shaped perceptions of material and moral worth, as well as notions of social respectability and personal responsibility. Credit and debt were defining features of imperial Russia’s culture of property ownership. Sergei Antonov recreates this vanished world of borrowers, bankrupts, lenders, and loan sharks in imperial Russia from the reign of Nicholas I to the period of great social and political reforms of the 1860s.
Poring over a trove of previously unexamined records, Antonov gleans insights into the experiences of ordinary Russians, rich and poor, and shows how Russia’s informal but sprawling credit system helped cement connections among property owners across socioeconomic lines. Individuals of varying rank and wealth commonly borrowed from one another. Without a firm legal basis for formalizing debt relationships, obtaining a loan often hinged on subjective perceptions of trustworthiness and reputation. Even after joint-stock banks appeared in Russia in the 1860s, credit continued to operate through vast networks linked by word of mouth, as well as ties of kinship and community. Disputes over debt were common, and Bankrupts and Usurers of Imperial Russia offers close readings of legal cases to argue that Russian courts—usually thought to be underdeveloped in this era—provided an effective forum for defining and protecting private property interests.
The Battle for Children links two major areas of historical inquiry: crime and delinquency with war and social change. In a study based on impressive archival research, Sarah Fishman reveals the impact of the Vichy regime on one of history’s most silent groups—children—and offers enlightening new information about the Vichy administration.
Fishman examines how French children experienced the events of war and the German occupation, demonstrating that economic deprivation, not family dislocation, sharply drove up juvenile crime rates. Wartime circumstances led authorities to view delinquent minors as victims, and provided the opportunity for reformers in psychiatry, social work, and law to fundamentally transform France’s punitive juvenile justice system into a profoundly therapeutic one. Vichy-era legislation thus formed the foundation of the modern juvenile justice system in France, which rarely incarcerates delinquent youth.
In her examination of the critical but unexpected role the war and the authoritarian Vichy regime played in the transformation of France’s juvenile courts and institutions, Fishman has enriched our knowledge of daily life in France during World War II, refined our understanding of Vichy’s place in the historical development of France, and provided valuable insights into contemporary debates on juvenile justice.
During the struggle for decolonization, Frantz Fanon argued that artists who mimicked European aestheticism were “beginning at the end,” skipping the inventive phase of youth for a decadence thought more typical of Europe’s declining empires. Robert Stilling takes up Fanon’s assertion to argue that decadence became a key idea in postcolonial thought, describing both the failures of revolutionary nationalism and the assertion of new cosmopolitan ideas about poetry and art.
In Stilling’s account, anglophone postcolonial artists have reshaped modernist forms associated with the idea of art for art’s sake and often condemned as decadent. By reading decadent works by J. K. Huysmans, Walter Pater, Henry James, and Oscar Wilde alongside Chinua Achebe, Derek Walcott, Agha Shahid Ali, Derek Mahon, Yinka Shonibare, Wole Soyinka, and Bernardine Evaristo, Stilling shows how postcolonial artists reimagined the politics of aestheticism in the service of anticolonial critique. He also shows how fin de siècle figures such as Wilde questioned the imperial ideologies of their own era.
Like their European counterparts, postcolonial artists have had to negotiate between the imaginative demands of art and the pressure to conform to a revolutionary politics seemingly inseparable from realism. Beginning at the End argues that both groups—European decadents and postcolonial artists—maintained commitments to artifice while fostering oppositional politics. It asks that we recognize what aestheticism has contributed to politically engaged postcolonial literature. At the same time, Stilling breaks down the boundaries around decadent literature, taking it outside of Europe and emphasizing the global reach of its imaginative transgressions.
Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.
The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors' view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.
In the early 1970s, David Copus, a young, long-haired lawyer, teamed up with his government colleagues to confront the mature and staid executives of AT&T over the company’s treatment of its female and minority employees. Their disagreement resulted in a $38 million settlement that benefited 15,000 employees, more than 13,000 of them women, and changed our perceptions of women’s and men’s roles in the workplace forever.
Copus, who worked for the Equal Employment Opportunity Commission (EEOC), was charged with representing American citizens who suffered from employment discrimination. Time and again he saw young, black women in the South being turned down for available jobs in local phone companies—usually as telephone operators—often for no valid reason at all. He and the EEOC decided to challenge AT&T’s company-wide sex discrimination practices. Eventually, AT&T’s corporate colleagues, witnessing AT&T’s capitulation, began to hire and promote women into better jobs themselves. At the same time, the EEOC started to more aggressively push corporate America to give women better opportunities.
The Bellwomen recounts the history of this case in a novelistic style, illuminating the motivations, strengths, and weaknesses of all the players, from AT&T corporate leaders, to the lawyers of the EEOC, to the female activists fighting for what they believed. Stockford also profiles three beneficiaries of the case, presenting their ambitions and achievements.
Combined with the power of America’s civil rights laws and the influence of the second wave women’s movement, this case provided a catalyst that drove many more women into the paid workforce in non-traditional jobs. By the late twentieth century, when women could be seen working everywhere, from construction sites to corporate offices, it appeared that they belonged there and always had.
Since the early 1990s, transnational adoptions have increased at an astonishing rate, not only in the United States, but worldwide. In Belonging in an Adopted World, Barbara Yngvesson offers a penetrating exploration of the consequences and implications of this unprecedented movement of children, usually from poor nations to the affluent West. Yngvesson illuminates how the politics of adoption policy has profoundly affected the families, nations, and children involved in this new form of social and economic migration.
Starting from the transformation of the abandoned child into an adoptable resource for nations that give and receive children in adoption, this volume examines the ramifications of such gifts, especially for families created through adoption and later, the adopted adults themselves. Bolstered by an account of the author’s own experience as an adoptive parent, and fully attuned to the contradictions of race that shape our complex forms of family, Belonging in an Adopted World explores the fictions that sustain adoptive kinship, ultimately exposing the vulnerability and contingency behind all human identity.
What do we know about the possible poisons that industrial technologies leave in our air and water? How reliable is the science that federal regulators and legislators use to protect the public from dangerous products? As this disturbing book shows, ideological or economic attacks on research are part of an extensive pattern of abuse.
Thomas O. McGarity and Wendy E. Wagner reveal the range of sophisticated legal and financial tactics political and corporate advocates use to discredit or suppress research on potential human health hazards. Scientists can find their research blocked, or find themselves threatened with financial ruin. Corporations, plaintiff attorneys, think tanks, even government agencies have been caught suppressing or distorting research on the safety of chemical products.
With alarming stories drawn from the public record, McGarity and Wagner describe how advocates attempt to bend science or “spin” findings. They reveal an immense range of tools available to shrewd partisans determined to manipulate research.
Bending Science exposes an astonishing pattern of corruption and makes a compelling case for reforms to safeguard both the integrity of science and the public health.
For most Americans today, Roe v. Wade concerns just one thing: the right to choose abortion. But the Supreme Court’s decision once meant much more. The justices ruled that the right to privacy encompassed the abortion decision. Grassroots activists and politicians used Roe—and popular interpretations of it—as raw material in answering much larger questions: Is there a right to privacy? For whom, and what is protected?
As Mary Ziegler demonstrates, Roe’s privacy rationale attracted a wide range of citizens demanding social changes unrelated to abortion. Movements questioning hierarchies based on sexual orientation, profession, class, gender, race, and disability drew on Roe to argue for an autonomy that would give a voice to the vulnerable. So did advocates seeking expanded patient rights and liberalized euthanasia laws. Right-leaning groups also invoked Roe’s right to choose, but with a different agenda: to attack government involvement in consumer protection, social welfare, racial justice, and other aspects of American life.
In the 1980s, seeking to unify a fragile coalition, the Republican Party popularized the idea that Roe was a symbol of judicial tyranny, discouraging anyone from relying on the decision to frame their demands. But Beyond Abortion illuminates the untapped potential of arguments that still resonate today. By recovering the diversity of responses to Roe, and the legal and cultural battles it energized, Ziegler challenges readers to come to terms with the uncomfortable fact that privacy belongs to no party or cause.
Born into slavery in rural Louisiana, Rose Herera was bought and sold several times before being purchased by the De Hart family of New Orleans. Still a slave, she married and had children, who also became the property of the De Harts. But after Union forces captured New Orleans in 1862 during the American Civil War, Herera’s owners fled to Havana, taking three of her small children with them. Beyond Freedom’s Reach is the true story of one woman’s quest to rescue her children from bondage.
In a gripping, meticulously researched account, Adam Rothman lays bare the mayhem of emancipation during and after the Civil War. Just how far the rights of freed slaves extended was unclear to black and white people alike, and so when Mary De Hart returned to New Orleans in 1865 to visit friends, she was surprised to find herself taken into custody as a kidnapper. The case of Rose Herera’s abducted children made its way through New Orleans’ courts, igniting a custody battle that revealed the prospects and limits of justice during Reconstruction.
Rose Herera’s perseverance brought her children’s plight to the attention of members of the U.S. Senate and State Department, who turned a domestic conflict into an international scandal. Beyond Freedom’s Reach is an unforgettable human drama and a poignant reflection on the tangled politics of slavery and the hazards faced by so many Americans on the hard road to freedom.
In 1963, West Germany was gripped by a dramatic trial of former guards who had worked at the Nazi death camp Auschwitz. It was the largest and most public trial to take place in the country and attracted international attention. Using the pretrial files and extensive trial audiotapes, Rebecca Wittmann offers a fascinating reinterpretation of Germany’s first major attempt to confront its past.
Evoking the courtroom atmosphere, Wittmann vividly recounts the testimony of survivors, former SS officers, and defendants—a cross-section of the camp population. Attorney General Fritz Bauer made an extraordinary effort to put the entire Auschwitz complex on trial, but constrained by West German murder laws, the prosecution had to resort to standards for illegal behavior that echoed the laws of the Third Reich. This provided a legitimacy to the Nazi state. Only those who exceeded direct orders were convicted of murder. This shocking ruling was reflected in the press coverage, which focused on only the most sadistic and brutal crimes, allowing the real atrocity at Auschwitz—mass murder in the gas chambers—to be relegated to the background.
The Auschwitz trial had a paradoxical result. Although the prosecution succeeded in exposing SS crimes at the camp for the first time, the public absorbed a distorted representation of the criminality of the camp system. The Auschwitz trial ensured that rather than coming to terms with their Nazi past, Germans managed to delay a true reckoning with the horror of the Holocaust.
Beyond Occupation looks at three contentious terms that regularly arise in contemporary arguments about Israel's practices towards Palestinians in the occupied territories – occupation, colonialism and apartheid – and considers whether their meanings in international law truly apply to Israel's policies. This analysis is timely and urgent – colonialism and apartheid are serious breaches of human rights law and apartheid is a crime against humanity under the Rome Statute of the International Criminal Court.
The contributors present conclusive evidence that Israel’s administration of the Palestinian territories is consistent with colonialism and apartheid, as these regimes are defined in human rights law. Their analysis further shows that these practices are deliberate Israeli state policies, imposed on the Palestinian civilian population under military occupation.
These findings raise serious implications for the legality and legitimacy of Israel's continuing occupation of the Palestinian territories and the responsibility of the entire international community to challenge practices considered contrary to fundamental values of the international legal order.
A number of the essays scrutinize thinking about capital punishment. They examine why, following almost two decades of strong public support for the death penalty, public opinion in favor of it has recently begun to decline. Beyond Repair? presents some of the findings of the Capital Jury Project, a nationwide research initiative that has interviewed over one thousand people who served as jurors in capital trials. It looks at what goes through the minds of jurors asked to consider imposing the death penalty, how qualified they are to make such an important decision, and how well they understand the judge’s instructions. Contributors also investigate the risk of executing the innocent, the role that race plays in determining which defendants are sentenced to death, and the effect of expanded restrictions on access to federal appellate relief. The postscript contemplates the peculiarities of our contemporary system of capital punishment, including the alarming variance in execution rates from state to state.
Filled with current insights and analysis, Beyond Repair? will provide valuable information to attorneys, political scientists, criminologists, and all those wanting to participate knowledgeably in the debates about the death penalty in America.
Contributors. Ken Armstrong, John H. Blume, Theodore Eisenberg, Phoebe C. Ellsworth, Stephen P. Garvey, Samuel R. Gross, Sheri Lynn Johnson, Steve Mills, William A. Schabas, Larry W. Yackle, Franklin E. Zimring
In nineteenth-century England, sodomy was punishable by death; even an accusation could damage a man’s reputation for life. The last executions for this private, consensual act were in 1835, but the effort to change the law that allowed for those executions was intense and precarious, and not successful until 1861. In this groundbreaking book, “Beyond the Law,” noted historian Charles Upchurch pieces together fragments from history and uses a queer history methodology to recount the untold story of the political process through which the law allowing for the death penalty for sodomy was almost ended in 1841.
Upchurch recounts the legal and political efforts of reformers like Jeremy Bentham and Lord John Russell—the latter of whom argued that the death penalty for sodomy was “beyond the law and above the law.” He also reveals that a same-sex relationship linked the families of the two men responsible for co-sponsoring the key legislation. By recovering the various ethical, religious, and humanitarian arguments against punishing sodomy, “Beyond the Law” overturns longstanding assumptions of nineteenth-century British history. Upchurch demonstrates that social change came from an amalgam of reformist momentum, family affection, elitist politics, class privilege, enlightenment philosophy, and personal desires.
Conflict is inevitable, in both deals and disputes. Yet when clients call in the lawyers to haggle over who gets how much of the pie, traditional hard-bargaining tactics can lead to ruin. Too often, deals blow up, cases don’t settle, relationships fall apart, justice is delayed. Beyond Winning charts a way out of our current crisis of confidence in the legal system. It offers a fresh look at negotiation, aimed at helping lawyers turn disputes into deals, and deals into better deals, through practical, tough-minded problem-solving techniques.
In this step-by-step guide to conflict resolution, the authors describe the many obstacles that can derail a legal negotiation, both behind the bargaining table with one’s own client and across the table with the other side. They offer clear, candid advice about ways lawyers can search for beneficial trades, enlarge the scope of interests, improve communication, minimize transaction costs, and leave both sides better off than before. But lawyers cannot do the job alone. People who hire lawyers must help change the game from conflict to collaboration. The entrepreneur structuring a joint venture, the plaintiff embroiled in a civil suit, the CEO negotiating an employment contract, the real estate developer concerned with environmental hazards, the parent considering a custody battle—clients who understand the pressures and incentives a lawyer faces can work more effectively within the legal system to promote their own best interests. Attorneys exhausted by the trench warfare of cases that drag on for years will find here a positive, proven approach to revitalizing their profession.
Fighting disease, combating hunger, preserving the balance of life on Earth: the future of biotechnological innovation may well be the future of our planet itself. And yet the vexed state of intellectual property law—a proliferation of ever more complex rights governing research and development—is complicating this future. At a similar point in the development of information technology, “open source” software revolutionized the field, simultaneously encouraging innovation and transforming markets. The question that Janet Hope explores in Biobazaar is: can the open source approach do for biotechnology what it has done for information technology? Her book is the first sustained and systematic inquiry into the application of open source principles to the life sciences.
The appeal of the open source approach—famously likened to a “bazaar,” in contrast to the more traditional “cathedral” style of technology development—lies in its safeguarding of community access to proprietary tools without discouraging valuable commercial participation. Traversing disciplinary boundaries, Hope presents a careful analysis of intellectual property-related challenges confronting the biotechnology industry and then paints a detailed picture of “open source biotechnology” as a possible solution. With insights drawn from interviews with Nobel Prize–winning scientists and leaders of the free and open source software movement—as well as company executives, international policymakers, licensing experts, and industry analysts—her book suggests that open source biotechnology is both desirable and broadly feasible—and, in many ways, merely awaiting its moment.
Biodiversity and the Law is a timely and provocative volume that combines historical perspective and cutting-edge legal analysis in an authoritative and broad discussion of biodiversity and the law. Leading legal and policy experts consider a variety of options for the worldwide protection of biodiversity and present a succinct but comprehensive overview of the legal mechanisms available. They examine how conservation advocates can better utilize existing law, and consider what new law is needed.
Among the topics considered are:
The vast majority of the global population acquires citizenship purely by accidental circumstances of birth. There is little doubt that securing membership status in a given state bequeaths to some a world filled with opportunity and condemns others to a life with little hope. Gaining privileges by such arbitrary criteria as one’s birthplace is discredited in virtually all fields of public life, yet birthright entitlements still dominate our laws when it comes to allotting membership in a state.
In The Birthright Lottery, Ayelet Shachar argues that birthright citizenship in an affluent society can be thought of as a form of property inheritance: that is, a valuable entitlement transmitted by law to a restricted group of recipients under conditions that perpetuate the transfer of this prerogative to their heirs. She deploys this fresh perspective to establish that nations need to expand their membership boundaries beyond outdated notions of blood-and-soil in sculpting the body politic. Located at the intersection of law, economics, and political philosophy, The Birthright Lottery further advocates redistributional obligations on those benefiting from the inheritance of membership, with the aim of ameliorating its most glaring opportunity inequalities.
Beginning in 1950, the state of Israel prosecuted and jailed dozens of Holocaust survivors who had served as camp kapos or ghetto police under the Nazis. At last comes the first full account of the kapo trials, based on records newly declassified after forty years.
In December 1945, a Polish-born commuter on a Tel Aviv bus recognized a fellow rider as the former head of a town council the Nazis had established to manage the Jews. When he denounced the man as a collaborator, the rider leapt off the bus, pursued by passengers intent on beating him to death. Five years later, to address ongoing tensions within Holocaust survivor communities, the State of Israel instituted the criminal prosecution of Jews who had served as ghetto administrators or kapos in concentration camps.
Dan Porat brings to light more than three dozen little-known trials, held over the following two decades, of survivors charged with Nazi collaboration. Scouring police investigation files and trial records, he found accounts of Jewish policemen and camp functionaries who harassed, beat, robbed, and even murdered their brethren. But as the trials exposed the tragic experiences of the kapos, over time the courts and the public shifted from seeing them as evil collaborators to victims themselves, and the fervor to prosecute them abated.
Porat shows how these trials changed Israel’s understanding of the Holocaust and explores how the suppression of the trial records—long classified by the state—affected history and memory. Sensitive to the devastating options confronting those who chose to collaborate, yet rigorous in its analysis, Bitter Reckoning invites us to rethink our ideas of complicity and justice and to consider what it means to be a victim in extraordinary circumstances.
Every day, corporations are connecting the dots about our personal behavior—silently scrutinizing clues left behind by our work habits and Internet use. The data compiled and portraits created are incredibly detailed, to the point of being invasive. But who connects the dots about what firms are doing with this information? The Black Box Society argues that we all need to be able to do so—and to set limits on how big data affects our lives.
Hidden algorithms can make (or ruin) reputations, decide the destiny of entrepreneurs, or even devastate an entire economy. Shrouded in secrecy and complexity, decisions at major Silicon Valley and Wall Street firms were long assumed to be neutral and technical. But leaks, whistleblowers, and legal disputes have shed new light on automated judgment. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only scratched the surface of this troubling behavior.
Frank Pasquale exposes how powerful interests abuse secrecy for profit and explains ways to rein them in. Demanding transparency is only the first step. An intelligible society would assure that key decisions of its most important firms are fair, nondiscriminatory, and open to criticism. Silicon Valley and Wall Street need to accept as much accountability as they impose on others.
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.
Combining political analysis, scientific reasoning, and an in-depth study of specific state supreme court cases, Black Robes, White Coats is an interdisciplinary examination of the tradition of "gatekeeping," the practice of deciding the admissibility of novel scientific evidence. Rebecca Harris systematically examines judicial policymaking in three areas forensic DNA, polygraphs, and psychological syndrome evidence to answer the question: Why is scientific evidence treated differently among various jurisdictions? These decisions have important implications for evaluating our judicial system and its ability to accurately develop scientific policy.
While the interaction of these professions occurs because the white coats often develop and ascertain knowledge deemed very useful to the black robes, Harris concludes that the black robes are well positioned to render appropriate rulings and determine the acceptability of harnessing a particular science for legal purposes.
First book to systematically gather and analyze judicial decisions on scientific admissibility
Analyzes several key cases including Arizona v. Bible and Kansas v. Marks
Includes examples of evidence in three appendices: forensic DNA, polygraph evidence, and syndrome evidence
Presents an original model of the gatekeeping process
Often seen as a political sop to the racial fears of white voters, aggressive policing and draconian sentencing for illegal drug possession and related crimes have led to the imprisonment of millions of African Americans—far in excess of their representation in the population as a whole. Michael Javen Fortner shows in this eye-opening account that these punitive policies also enjoyed the support of many working-class and middle-class blacks, who were angry about decline and disorder in their communities. Black Silent Majority uncovers the role African Americans played in creating today’s system of mass incarceration.
Current anti-drug policies are based on a set of controversial laws first adopted in New York in the early 1970s and championed by the state’s Republican governor, Nelson Rockefeller. Fortner traces how many blacks in New York came to believe that the rehabilitation-focused liberal policies of the 1960s had failed. Faced with economic malaise and rising rates of addiction and crime, they blamed addicts and pushers. By 1973, the outcry from grassroots activists and civic leaders in Harlem calling for drastic measures presented Rockefeller with a welcome opportunity to crack down on crime and boost his political career. New York became the first state to mandate long prison sentences for selling or possessing narcotics.
Black Silent Majority lays bare the tangled roots of a pernicious system. America’s drug policies, while in part a manifestation of the conservative movement, are also a product of black America’s confrontation with crime and chaos in its own neighborhoods.
“Blockchains will matter crucially; this book, beautifully and clearly written for a wide audience, powerfully demonstrates how.”
—Lawrence Lessig
“Attempts to do for blockchain what the likes of Lawrence Lessig and Tim Wu did for the Internet and cyberspace—explain how a new technology will upend the current legal and social order… Blockchain and the Law is not just a theoretical guide. It’s also a moral one.”
—Fortune
Bitcoin has been hailed as an Internet marvel and decried as the preferred transaction vehicle for criminals. It has left nearly everyone without a computer science degree confused: how do you “mine” money from ones and zeros?
The answer lies in a technology called blockchain. A general-purpose tool for creating secure, decentralized, peer-to-peer applications, blockchain technology has been compared to the Internet in both form and impact. Blockchains are being used to create “smart contracts,” to expedite payments, to make financial instruments, to organize the exchange of data and information, and to facilitate interactions between humans and machines. But by cutting out the middlemen, they run the risk of undermining governmental authorities’ ability to supervise activities in banking, commerce, and the law. As this essential book makes clear, the technology cannot be harnessed productively without new rules and new approaches to legal thinking.
“If you…don’t ‘get’ crypto, this is the book-length treatment for you.”
—Tyler Cowen, Marginal Revolution
“De Filippi and Wright stress that because blockchain is essentially autonomous, it is inflexible, which leaves it vulnerable, once it has been set in motion, to the sort of unforeseen consequences that laws and regulations are best able to address.”
—James Ryerson, New York Times Book Review
In April 1861, President Abraham Lincoln suspended the writ of habeas corpus along the military line between Washington, D.C., and Philadelphia. This allowed army officers to arrest and indefinitely detain persons who were interfering with military operations in the area. When John Merryman, a wealthy Marylander suspected of burning bridges to prevent the passage of U.S. troops to Washington, was detained in Fort McHenry, the chief justice of the Supreme Court, Roger Taney, declared the suspension of habeas corpus unconstitutional and demanded Merryman's immediate release. Lincoln defied Taney’s order, offering his own forceful counter-argument for the constitutionality of his actions. Thus the stage was set for one of the most dramatic personal and legal confrontations the country has ever witnessed.
The Body of John Merryman is the first book-length examination of this much-misunderstood chapter in American history. Brian McGinty captures the tension and uncertainty that surrounded the early months of the Civil War, explaining how Lincoln's suspension of habeas corpus was first and foremost a military action that only subsequently became a crucial constitutional battle. McGinty's narrative brings to life the personalities that drove this uneasy standoff and expands our understanding of the war as a legal—and not just a military, political, and social—conflict. The Body of John Merryman is an extraordinarily readable book that illuminates the contours of one of the most significant cases in American legal history—a case that continues to resonate in our own time.
In January 2002, for the first time, the Olympic Torch Relay visited Alaska on its way to the Winter Games. When the relay runner and accompanying camera cars passed Juneau-Douglas High School, senior Joseph Frederick and several friends unfurled a fourteen-foot banner reading "BONG HiTS 4 JESUS."
An in-depth look at student rights within a public high school, this book chronicles the events that followed: Frederick's suspension, the subsequent suit against the school district, and, ultimately, the escalation of a local conflict into a federal case. Brought to life through interviews with the principal figures in the case, Bong Hits 4 Jesus is a gripping tale of the boundaries of free speech in an American high school.
Book of the Disappeared confronts worldwide human rights violations of enforced disappearance and genocide and explores the global quest for justice with forceful, outstanding contributions by respected scholars, expert practitioners, and provocative contemporary artists. This profoundly humane book spotlights our historic inhumanity while offering insights for survival and transformation.
The First Seminole War of 1816–1818 played a critical role in shaping how the United States demarcated its spatial and legal boundaries during the early years of the republic. Rooted in notions of American exceptionalism, manifest destiny, and racism, the legal framework that emerged from the war laid the groundwork for the Monroe Doctrine, the Dred Scott decision, and U.S. westward expansion over the course of the nineteenth century, as Deborah Rosen explains in Border Law.
When General Andrew Jackson’s troops invaded Spanish-ruled Florida in the late 1810s, they seized forts, destroyed towns, and captured or killed Spaniards, Britons, Creeks, Seminoles, and African-descended people. As Rosen shows, Americans vigorously debated these aggressive actions and raised pressing questions about the rights of wartime prisoners, the use of military tribunals, the nature of sovereignty, the rules for operating across territorial borders, the validity of preemptive strikes, and the role of race in determining legal rights. Proponents of Jackson’s Florida campaigns claimed a place for the United States as a member of the European diplomatic community while at the same time asserting a regional sphere of influence and new rules regarding the application of international law.
American justifications for the incursions, which allocated rights along racial lines and allowed broad leeway for extraterritorial action, forged a more unified national identity and set a precedent for an assertive foreign policy.
Readers can download a pdf of the book here.
It is commonly believed that international law originated in relations among European states that respected one another as free and equal. In fact, as Jennifer Pitts shows, international law was forged at least as much through Europeans’ domineering relations with non-European states and empires, leaving a legacy still visible in the unequal structures of today’s international order.
Pitts focuses on the eighteenth and nineteenth centuries, the great age of imperial expansion, as European intellectuals and administrators worked to establish and justify laws to govern emerging relationships with non-Europeans. Relying on military and commercial dominance, European powers dictated their own terms on the basis of their own norms and interests. Despite claims that the law of nations was a universal system rooted in the values of equality and reciprocity, the laws that came to govern the world were parochial and deeply entangled in imperialism. Legal authorities, including Emer de Vattel, John Westlake, and Henry Wheaton, were key figures in these developments. But ordinary diplomats, colonial administrators, and journalists played their part too, as did some of the greatest political thinkers of the time, among them Montesquieu and John Stuart Mill.
Against this growing consensus, however, dissident voices as prominent as Edmund Burke insisted that European states had extensive legal obligations abroad that ought not to be ignored. These critics, Pitts shows, provide valuable resources for scrutiny of the political, economic, and legal inequalities that continue to afflict global affairs.
Over the past two decades, corporations and other commercial entities have used strategic litigation to win more expansive First Amendment protections for commercial speech—from the regulation of advertising to the role corporate interests play in the political process, most recently debated in the Supreme Court case of Citizens United v. Federal Election Commission. Tamara R. Piety, a nationally known critic of commercial and corporate speech, argues that such an expansion of First Amendment speech rights imperils public health, safety, and welfare; the reliability of commercial and consumer information; the stability of financial markets; and the global environment.
Beginning with an evaluation of commonly evoked philosophical justifications for freedom of expression, Piety determines that, while these are appropriate for the protection of an individual’s rights, they should not be applied too literally to commercial expression because the corporate person is not the moral equivalent of the human person. She then gathers evidence from public relations and marketing, behavioral economics, psychology, and cognitive studies to show how overly permissive extensions of First Amendment protections to commercial expression limit governmental power to address some of the major social, economic, and environmental challenges of our time.
“The timeliness of the topic and the provision of original positions are sure to make the book a valuable contribution that should draw much attention.”
—Kevin W. Saunders, Michigan State University
How two teenage girls in Minnesota jump-started a revolution in high school athletics
Peggy Brenden, a senior, played tennis. Toni St. Pierre, a junior, was a cross country runner and skier. All these two talented teenagers wanted was a chance to compete on their high school sports teams. But in Minnesota in 1972 the only way on the field with the boys ran through a federal court—so that was where the girls went. Break Point tells the story, for the first time, of how two teenagers took on the unequal system of high school athletics, setting a legal precedent for schools nationwide before the passage of Title IX.
As Peggy’s younger sister, author Sheri Brenden is uniquely positioned to convey the human drama of the case, the stakes, and the consequences for two young women facing the legal machinery of the state, in court and in school. In an account that begins with Peggy painstakingly typing her appeal to the Minnesota Civil Liberties Union and concludes with a long view of what Brenden v. Independent School District 742 set in motion, Sheri Brenden summons the salient details of this landmark case as it makes its way through the courts. Peggy and Toni, coaches, administrators, and experts testify before Judge Miles Lord, whose decision, upheld in a precedent-setting appeal, would change these girls’ lives and open up athletic opportunities for innumerable others.
Grounded in newspaper coverage, court records, and interviews, Brenden’s deeply researched, scrupulously reported book is at heart the story of two talented teenage girls whose pluck and determination—and, often, heartache—led to a victory much greater than any high school championship.
The minuscule motion of a butterfly’s wings can trigger a tornado half a world away, according to chaos theory. Under the right conditions, small simple actions can produce large complex effects. In this timely and provocative book, Catharine A. MacKinnon argues that the right seemingly minor interventions in the legal realm can have a butterfly effect that generates major social and cultural transformations.
Butterfly Politics brings this incisive understanding of social causality to a wide-ranging exploration of gender relations. The pieces collected here—many published for the first time—provide a new perspective on MacKinnon’s career as a pioneer of legal theory and practice and an activist for women’s rights. Its central concerns of gender inequality, sexual harassment, rape, pornography, and prostitution have defined MacKinnon’s intellectual, legal, and political pursuits for over forty years. Though differing in style and approach, the selections all share the same motivation: to end inequality, including abuse, in women’s lives. Several mark the first time ideas that are now staples of legal and political discourse appeared in public—for example, the analysis of substantive equality. Others urge changes that have yet to be realized.
The butterfly effect can animate political activism and advance equality socially and legally. Seemingly insignificant actions, through collective recursion, can intervene in unstable systems to produce systemic change. A powerful critique of the legal and institutional denial of reality that perpetuates practices of gender inequality, Butterfly Politics provides a model of what principled, effective, socially conscious engagement with law looks like.
“Sometimes ideas change the world. This astonishing, miraculous, shattering, inspiring book captures the origins and the arc of the movement for sex equality. It’s a book whose time has come—always, but perhaps now more than ever.”
—Cass Sunstein, coauthor of Nudge
Under certain conditions, small simple actions can produce large and complex “butterfly effects.” Butterfly Politics shows how Catharine A. MacKinnon turned discrimination law into an effective tool against sexual abuse—grounding and predicting the worldwide #MeToo movement—and proposes concrete steps that could have further butterfly effects on women’s rights. Thirty years after she won the U.S. Supreme Court case establishing sexual harassment as illegal, this timely collection of her previously unpublished interventions on consent, rape, and the politics of gender equality captures in action the creative and transformative activism of an icon.
“MacKinnon adapts a concept from chaos theory in which the tiny motion of a butterfly’s wings can trigger a tornado half a world away. Under the right conditions, she posits, small actions can produce major social transformations.”
—New York Times
“MacKinnon [is] radical, passionate, incorruptible and a beautiful literary stylist… Butterfly Politics is a devastating salvo fired in the gender wars… This book has a single overriding aim: to effect global change in the pursuit of equality.”
—The Australian
“Sexual Harassment of Working Women was a revelation. It showed how this anti-discrimination law—Title VII—could be used as a tool… It was the beginning of a field that didn’t exist until then.”
—U.S. Supreme Court Justice Ruth Bader Ginsburg
In Buying Time, Thomas F. McDow synthesizes Indian Ocean, Middle Eastern, and East African studies as well as economic and social history to explain how, in the nineteenth century, credit, mobility, and kinship knit together a vast interconnected Indian Ocean region. That vibrant and enormously influential swath extended from the desert fringes of Arabia to Zanzibar and the Swahili coast and on to the Congo River watershed.
In the half century before European colonization, Africans and Arabs from coasts and hinterlands used newfound sources of credit to seek out opportunities, establish new outposts in distant places, and maintain families in a rapidly changing economy. They used temporizing strategies to escape drought in Oman, join ivory caravans in the African interior, and build new settlements.
The key to McDow’s analysis is a previously unstudied trove of Arabic business deeds that show complex variations on the financial transactions that underwrote the trade economy across the region. The documents list names, genealogies, statuses, and clan names of a wide variety of people—Africans, Indians, and Arabs; men and women; free and slave—who bought, sold, and mortgaged property. Through unprecedented use of these sources, McDow moves the historical analysis of the Indian Ocean beyond connected port cities to reveal the roles of previously invisible people.
This book introduces the great civilization of Byzantium and shows the centrality of Byzantium’s role in world history. It also celebrates the founding by Robert Woods Bliss and Mildred Bliss of one of the major institutions devoted to the study of that civilization, the Byzantine Center at Dumbarton Oaks in Washington, D.C.
Through seven interrelated chapters, which were originally given as lectures at two meetings held in Washington in 1990 and 1991 to honor the fiftieth anniversary of Dumbarton Oaks, the contributors demonstrate the place of Byzantine civilization in world history—both Eastern and Western. At the same time, they show the place of Dumbarton Oaks in interpreting that civilization for what its founders called “an everchanging present.”
The first essay, written by Milton Anastos, a scholar who first came to Dumbarton Oaks in 1941, one year after the founding of the Byzantine Center, is devoted to the institution itself and to the role that it has played in Byzantine Studies over the past fifty years. The four following chapters, by Speros Vryonis, Dimitri Obolensky, Irfan Shahîd, and Angeliki Laiou, discuss the relationships between Byzantium and its neighboring civilizations, Islamic, Slavic, and Western European, and display the great legacy that Byzantium left to those cultures. The two final essays, by Gary Vikam and Henry Maguire, present Byzantine art, today the best known aspect of Byzantine achievement, and discuss its reception by modern critics and historians.
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