|Being and Owning: The Body, Bodily Material, and the Law
When part of a person’s body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material is able to obtain. A ‘no property rule’ which states that there is no property in the human body was first recorded in an English judgment in 1882. Claims based on property rights in the human body and its parts have failed on the basis that the human body is not the subject of property. Despite a recent series of exceptions to the ‘no property rule’, the law still has no clear answer as to the legal status of the body or its material. In this book, Wall examines the appropriate legal status of bodily material, and in doing so, develops a way for the law to address disputes over the use and storage of bodily material that, contrary to the current trend, resists the application of property law.
Wall assesses when a person ought to be able to possess, control, use, or profit from, his or her own bodily material or the bodily material of another person. Bodily material may be valuable because it retains a functional unity with the body or is a material resource that is in short supply. With this in mind, Wall measures the extent to which property law can represent the rights and duties that protects the entitlement that a person may exercise in bodily material, and identifies the limits to the appropriate application of property law. An alternative to property law is developed with reference to the right of bodily integrity and the right to privacy.
|Enforcing the Equal Protection Clause: Congressional Power, Judicial Doctrine, and Constitutional Law
Araiza, William D.
For over a century, Congress’s power to enforce the Fourteenth Amendment’s guarantee of “the equal protection of the laws” has presented judges and scholars with a puzzle. What does it mean for Congress to “enforce” such a wide-ranging, open-ended provision when the Supreme Court has insisted on its own superiority in interpreting the Fourteenth Amendment? In Enforcing the Equal Protection Clause, William D. Araiza offers a unique understanding of Congress’s enforcement power and its relationship to the Court’s claim to supremacy when interpreting the Constitution.
Drawing on the history of American thinking about equality in the decades before and after the Civil War, Araiza argues that congressional enforcement and judicial supremacy can co-exist, but only if the Court limits its role to ensuring that enforcement legislation reasonably promotes the core meaning of the Equal Protection Clause. Much of the Court’s equal protection jurisprudence stops short of stating such core meaning, thus leaving Congress free (subject to appropriate judicial checks) to enforce the full scope of the constitutional guarantee. Araiza’s thesis reconciles the Supreme Court’s ultimate role in interpreting the Constitution with Congress’s superior capacity to transform the Fourteenth Amendment’s majestic principles into living reality. The Fourteenth Amendment’s Enforcement Clause raises difficult issues of separation of powers, federalism, and constitutional rights. Araiza illuminates each of these in this scholarly, timely work that is both intellectually rigorous but also accessible to non-specialist readers.
|Fostering State-Tribal Collaboration: An Indian Law Primer
Wilkins, Andrea K.
Fostering State-Tribal Collaboration: An Indian Law Primer surveys federal Indian law in order to facilitate collaborative policy development between the states and Native American tribes. Wilkins addresses civil and criminal jurisdiction, taxation, the Indian Child Welfare Act and other human services issues, environmental regulation, Indian gaming and revenue sharing, intergovernmental agreements and limited waivers of sovereign immunity, encouraging a move away from conflict and litigation and towards communication and collaboration. She provides a historical context for the existing law and foundational knowledge to foster programs and policies that meet the needs of all citizens and engage in successful cross-jurisdictional policy development. Unlike most other authors of texts on Indian law, who write for academics or lawyers, Wilkins explains current issues using practical, jargon-free language, making her book of immediate practical value to policymakers and students.
|The Future of Law and Economics: Essays in Reform and Recollection
In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which he identifies with Jeremy Bentham and John Stuart Mill. The first, Benthamite, strain, “economic analysis of law,” examines the legal system in the light of economic theory and shows how economics might render law more effective. The second strain, law and economics, gives equal status to law, and explores how the more realistic, less theoretical discipline of law can lead to improvements in economic theory. It is the latter approach that Judge Calabresi advocates, in a series of eloquent, thoughtful essays that will appeal to students and scholars alike.
|The Law of the Land: A Grand Tour of Our Constitutional Republic
Amar, Akhil Reed
In The Law of the Land, renowned legal scholar Akhil Reed Amar illustrates how geography, federalism, and regionalism have influenced some of the biggest questions in American constitutional law. Writing about Illinois, “the land of Lincoln,” Amar shows how our sixteenth president’s ideas about secession were influenced by his Midwestern upbringing and outlook. All of today’s Supreme Court justices, Amar notes, learned their law in the Northeast, and New Yorkers of various sorts dominate the judiciary as never before. The curious Bush v. Gore decision, Amar insists, must be assessed with careful attention to Florida law and the Florida Constitution. The second amendment appears in a particularly interesting light, he argues, when viewed from the perspective of Rocky Mountain cowboys and cowgirls.
Propelled by Amar’s distinctively smart, lucid, and engaging prose, these essays allow general readers to see the historical roots of, and contemporary solutions to, many important constitutional questions. The Law of the Land illuminates our nation’s history and politics, and shows how America’s various local parts fit together to form a grand federal framework.
|Lawfare: Law as a Weapon of War
Kittrie, Orde F.
International military interventions endanger soldier and civilian lives, can be financially costly, and risk spiraling out of control. One incident which exemplified the risks involved a US and UK wish to stop a Russian ship from delivering helicopter gunships to the Assad regime in Syria in 2012. Forcibly intercepting a Russian ship in transit could have risked World War III, so they developed an alternative, non-confrontational maneuver: instead of military intervention, the UK persuaded the ship’s insurer, London’s Standard Club, to withdraw the ship’s insurance. This loss of insurance caused the ship to return to Russia, thus avoiding an international clash as well as the delivery of deadly weapons to Syria. This use of legal maneuvering in lieu of armed force is known as “lawfare” and is becoming a critical tool in the foreign policy arena.
In Lawfare, author Orde Kittrie draws on his experiences as a lawfare practitioner, US State Department attorney, and international law scholar in analyzing the theory and practice of lawfare. Kittrie explains how factors including the increased reach of international laws and tribunals and the rise of economic globalization and information technology have fueled lawfare’s increasing power and prevalence. The book includes case studies of recent offensive and defensive lawfare by the United States, China, all sides of the Israeli-Palestinian conflict, and several non-governmental organizations and individuals. Kittrie asserts that much of the United States’ most effective and creative lawfare today is being waged by private sector or other non-governmental attorneys. He analyzes why this is the case, and describes how such attorneys’ expertise and experience can contribute even more to U.S. national security. Kittrie also explains that lawfare, deployed more systematically and adeptly by the U.S. government, could likely reduce U.S. and foreign casualties, and save U.S. taxpayer dollars, by supplementing or replacing the use of armed force as a tool for achieving some significant U.S. national security objectives. Understanding this alternative to armed force has never been more important.
|Law’s Religion: Religious Difference and the Claims of Constitutionalism
Berger, Benjamin L.
Prevailing stories about law and religion place great faith in the capacity of legal multiculturalism, rights-based toleration, and conceptions of the secular to manage issues raised by religious difference. Yet the relationship between law and religion consistently proves more fraught than such accounts suggest. In Law’s Religion, Benjamin L. Berger knocks law from its perch above culture, arguing that liberal constitutionalism is an aspect of, not an answer to, the challenges of cultural pluralism. Berger urges an approach to the study of law and religion that focuses on the experience of law as a potent cultural force.
Based on a close reading of Canadian jurisprudence, but relevant to all liberal legal orders, this book explores the nature and limits of legal tolerance and shows how constitutional law’s understanding of religion shapes religious freedom. Rather than calling for legal reform, Law’s Religion invites us to rethink the ethics, virtues, and practices of adjudication in matters of religious difference.
|Legalism: Rules and Categories
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Mainstream historians in recent decades have often treated formal categories and rules as something to be ‘used’ by individuals, as one might use a stick or stone, and the gains of an earlier legal history are often needlessly set aside. Anthropologists, meanwhile, have treated rules as analytic errors and categories as an imposition by outside powers or by analysts, leaving a very thin notion of ‘practice’ as the stuff of social life. Philosophy of an older vintage, as well as the work of scholars such as Charles Taylor, provides fresh approaches when applied imaginatively to cases beyond the traditional ground of modern Europe and North America. Not only are different kinds of rules and categories open to examination, but the very notion of a rule can be explored more deeply.
This volume approaches rules and categories as constitutive of action and hence of social life, but also as providing means of criticism and imagination. A general theoretical framework is derived from analytical philosophy, from Wittgenstein to his critics and beyond, and from recent legal thinkers such as Schauer and Waldron. Case-studies are presented from a broad range of periods and regions, from Amazonia via northern Chad, Tibet, and medieval Russia to the scholarly worlds of Roman law, Islam, and Classical India. As the third volume in the Legalism series, this collection draws on common themes that run throughout the first two volumes: Legalism: Anthropology and History and Legalism: Community and Justice, consolidating them in a framework that suggests a new approach to rule-bound systems.
|The Mandate of Dignity: Ronald Dworkin, Revolutionary Constitutionalism, and the Claims of Justice
A major American legal thinker, the late Ronald Dworkin also helped shape new dispensations in the Global South. In South Africa, in particular, his work has been fiercely debated in the context of one of the world’s most progressive constitutions. Despite Dworkin’s discomfort with that document’s enshrinement of “socioeconomic rights,” his work enables an important defense of a jurisprudence premised on justice, rather than on legitimacy.
Beginning with a critical overview of Dworkin’s work culminating in his two principles of dignity, Cornell and Friedman turn to Kant and Hegel for an approach better able to ground the principles of dignity Dworkin advocates. Framed thus, Dworkin’s challenge to legal positivism enables a theory of constitutional revolution in which existing legal structures are transformatively revalued according to ethical mandates. By founding law on dignity, Dworkin begins to articulate an ethical jurisprudence responsive to the lived experience of injustice. This book, then, articulates a revolutionary constitutionalism crucial to the struggle for decolonization.
|Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation
Slocum, Brian G.
Consider this court case: a defendant has traded a gun for drugs, and there is a criminal sentencing provision that stipulates an enhanced punishment if the defendant “uses” a firearm “during and in relation to a drug trafficking crime.” Buying the drugs was obviously a crime—but can it be said that the defendant actually “used” the gun during the crime? This sort of question is at the heart of legal interpretation.
Legal interpretation is built around one key question: by what standard should legal texts be interpreted? The traditional doctrine is that words should be given their “ordinary meaning”: words in legal texts should be interpreted in light of accepted standards of communication. Yet often, courts fail to properly consider context, refer to unsuitable dictionary definitions, or otherwise misconceive how the ordinary meaning of words should be determined. In this book, Brian Slocum builds his argument for a new method of interpretation by asking glaring, yet largely ignored, questions. What makes one particular meaning the “ordinary” one, and how exactly do courts conceptualize the elements of ordinary meaning? Ordinary Meaning provides a much-needed, revised framework, boldly instructing those involved with the law in how the components of ordinary meaning should properly be identified and developed in our modern legal system.
|Principles of Cybercrime
Digital technology has transformed the way in which we socialise and do business. Proving the maxim that crime follows opportunity, virtually every advance has been accompanied by a corresponding niche to be exploited for criminal purposes; so-called ‘cybercrimes’. Whether it be fraud, child pornography, stalking, criminal copyright infringement or attacks on computers themselves, criminals will find ways to exploit new technology. The challenge for all countries is to ensure their criminal laws keep pace. The challenge is a global one, and much can be learned from the experience of other jurisdictions. Focusing on Australia, Canada, the UK and the USA, this book provides a comprehensive analysis of the legal principles that apply to the prosecution of cybercrimes. This new edition has been fully revised to take into account changes in online offending, as well as new case law and legislation in this rapidly developing area of the law.
|Privacy on the Ground: Driving Corporate Behavior in the United States and Europe
Bamberger, Kenneth A.
Barely a week goes by without a new privacy revelation or scandal. Whether by hackers or spy agencies or social networks, violations of our personal information have shaken entire industries, corroded relations among nations, and bred distrust between democratic governments and their citizens. Polls reflect this concern, and show majorities for more, broader, and stricter regulation — to put more laws “on the books.” But there was scant evidence of how well tighter regulation actually worked “on the ground” in changing corporate (or government) behavior — until now.
This intensive five-nation study goes inside corporations to examine how the people charged with protecting privacy actually do their work, and what kinds of regulation effectively shape their behavior. And the research yields a surprising result. The countries with more ambiguous regulation — Germany and the United States — had the strongest corporate privacy management practices, despite very different cultural and legal environments. The more rule-bound countries — like France and Spain — trended instead toward compliance processes, not embedded privacy practices. At a crucial time, when Big Data and the Internet of Things are snowballing, Privacy on the Ground helpfully searches out the best practices by corporations, provides guidance to policymakers, and offers important lessons for everyone concerned with privacy, now and in the future.
|Rules of the Game: Sports Law
Jones, Michael E.
Sports law is an ever-growing field that requires constant updates, analyses, and research. Rules of the Game: Sports Law provides the most up-to-date information on hot-button issues such as crime in sports—including sexual harassment and assault both on college campuses and in private homes—sports litigation—especially pertaining to concussions—and publicity, privacy, and defamation rights of the athlete in today’s social media-crazed world where reputations can be destroyed in an instant.
Rules of the Game is an engaging and informative book written by one of the leading authorities in the field. Michael E. Jones offers readers the basics—such as how contracts are formed, the rights of athletes, labor laws, the NCAA, and copyright and trademark laws—but also covers much more. Jones discusses such essential topics as gender equity in sports, performance enhancing drugs and testing, international competition, and sports liability. The growth of multi-million and even billion dollar sports franchises requires enhanced professionalism in the area of negotiating sports and endorsement contracts, and the major players in the sports agency field are covered in full.
Rules of the Game contains appendixes that offer valuable resources, including a sample drug testing consent form, a standard player contract from the NFL, and a National Football League Players Association (NFLPA) representation contract. With key words and discussion questions at the end of each chapter, this book is a comprehensive yet highly readable text for both undergraduate and graduate students.
|Saviour Siblings and the Regulation of Assisted Reproductive Technology: Harm, Ethics and Law
Smith, Malcolm K.
Advances in the field of Assisted Reproductive Technology (ART) have been revolutionary. This book focuses on the use of ARTs in the context of families who seek to conceive a matching sibling donor as a source of tissue to treat an existing sick child. Such children have been referred to as ‘saviour siblings’. Considering the legal and regulatory frameworks that impact on the accessibility of this technology in Australia and the UK, the work analyses the ethical and moral issues that arise from the use of the technology for this specific purpose. The author claims the only justification for limiting a family’s reproductive liberty in this context is where the exercise of reproductive decision-making results in harm to others. It is argued that the harm principle is the underlying feature of legislative action in Western democratic society, and as such, this principle provides the grounds upon which a strong and persuasive argument is made for a less-restrictive regulatory approach in the context of ‘saviour siblings’. The book will be of great relevance and interest to academics, researchers, practitioners and policy makers in the fields of law, ethics, philosophy, science and medicine.
|Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology
This timely book tells the story of the smart technologies that reconstruct our world, by provoking their most salient functionality: the prediction and preemption of our day-to-day activities, preferences, health and credit risks, criminal intent and spending capacity.
Mireille Hildebrandt claims that we are in transit between an information society and a data-driven society, which has far reaching consequences for the world we depend on. She highlights how the pervasive employment of machine-learning technologies that inform so-called ‘data-driven agency’ threaten privacy, identity, autonomy, non-discrimination, due process and the presumption of innocence. The author argues how smart technologies undermine, reconfigure and overrule the ends of the law in a constitutional democracy, jeopardizing law as an instrument of justice, legal certainty and the public good. Nevertheless, the book calls on lawyers, computer scientists and civil society not to reject smart technologies, explaining how further engaging these technologies may help to reinvent the effective protection of the Rule of Law.
Academics and researchers interested in the philosophy of law and technology will find this book both discerning and relevant. Practitioners and policy makers in the areas of law, computer science and engineering will benefit from the insight into smart technologies and their impact today.