New Books in the Library – September

American Constitutionalism, Marriage, and the Family: Obergefell v. Hodges and U.S. v. Windsor in Context

KF229.W56 A44 2016


This edited volume in American constitutionalism places the Supreme Court’s declaration of same-sex marriage rights in U.S. v. Windsor (2013) and Obergefell v. Hodges (2015) within the context of the Court’s developing understanding of the legal and social status of marriage and the family. Leading scholars in the fields of political science, law, and religion examine the roots of the Court’s affirmation of same-sex rights in a number of areas related to marriage and the family including the right to marry, equality and happiness in marriage, the right to privacy, freedom of association, property rights, parental power, and reproductive rights. Taken together, these essays evaluate the extent to which the Court’s recent marriage rulings both break with and derive from the competing principles of American Constitutionalism.

Answering the Call: An Autobiography of the Modern Struggle to End Racial Discrimination in America

Jones, Nathaniel R.
KF373.J64 J66 2016


Answering the Call is an extraordinary eyewitness account from an unsung hero of the battle for racial equality in America—a battle that, far from ending with the great victories of the civil rights era, saw some of its signal achievements in the desegregation fights of the 1970s and its most notable setbacks in the affirmative action debates that continue into the present in Ferguson, Baltimore, and beyond.

Judge Nathaniel R. Jones’s pathbreaking career was forged in the 1960s: as the first African American assistant U.S. attorney in Ohio; as assistant general counsel of the Kerner Commission; and, beginning in 1969, as general counsel of the NAACP. In that latter role, Jones coordinated attacks against Northern school segregation—a vital, divisive, and poorly understood chapter in the movement for equality—twice arguing in the pivotal U.S. Supreme Court case Bradley v. Milliken, which addressed school desegregation in Detroit. He also led the national response to the attacks against affirmative action, spearheading and arguing many of the signal legal cases of that effort.

Choosing State Supreme Court Justices: Merit Selection and the Consequences of Institutional Reform

Goelzhauser, Greg
KF8776 .G64 2016


Since 1940, more than half of all states have switched at least in part from popular election or elite appointment to experiment with merit selection in choosing some or all of their state supreme court justices. Under merit selection, a commission—often comprising some combination of judges, attorneys, and the general public—is tasked with considering applications from candidates vying to fill a judicial vacancy. Ostensibly, the commission forwards the best candidates to the governor, who ultimately appoints them. Presently, numerous states are debating whether to adopt or abolish merit selection.

In his short, sharp book, Choosing State Supreme Court Justices, Greg Goelzhauser utilizes new data on more than 1,500 state supreme court justices seated from 1960 through 2014 to answer the question, Does merit selection produce better types of judges? He traces the rise of merit selection and explores whether certain judicial selection institutions favor candidates who have better qualifications, are more diverse, and have different types of professional experience.

Goelzhauser’s results ultimately contribute to the broader debate concerning comparative institutional performance with respect to state judicial selection.

Courts, Litigants, and the Digital Age: Law, Ethics, and Practice

Eltis, Karen
K2146 .E48 2016


Courts, Litigants, and the Digital Age examines the ramifications of technology for courts, judges, and the administration of justice. It sets out the issues raised by technology, and, particularly, the Internet, so that conventional paradigms can be updated in the judicial context. In particular, the book dwells on issues such as proper judicial use of Internet sources, judicial ethics and social networking, electronic court records and anonymization techniques, control of the courtroom and jurors’ use of new technologies, as well as the Internet’s impact on judicial appointments and the diversity of the judiciary. The second edition includes discussion of current issues in this rapidly developing area, such as privacy protection, the “right to be forgotten,” cyber intimidation, freedom of digital speech, and litigant anonymity. Through examination of relevant practical, legal, and ethical issues, it endeavours to extract lessons from the developing issues surveyed and proposes forward-thinking approaches based on proportionality principles.

Discovering Agreement: Contracts that Turn Conflict into Creativity

Alvarez, Linda
KF807.2 .A58 2016


Imagine a contract that stimulates and supports rapid return to alignment and productivity in the face of unexpected change; inspires side-by-side problem-solving rather than adversarial confrontation when parties disagree; learns with the business as it navigates the ever-changing, digital-speed, modern marketplace. Discovering Agreement is an innovative approach to generating legally enforceable documents that embed responsive, resilient operating systems into contractual relationships. This practical, easily implemented process empowers parties to build sustainable business relationships, replacing the old-style foundation of distrust and adversarial posturing with one of alignment and affinity without sacrificing either party s power or credibility.

Using the Discovering Agreement model, parties create documents that support and sustain agile, adaptable business relationships aligned with the core vision and values of the parties. This model provides a safer, more stable and trustworthy foundation for framing and conducting business relationships, enabling parties to create stronger, more sustainable and enjoyable ventures that can endure and prosper in the midst of disagreement or crisis.

With engaging prose, personal stories, real-life examples, and practical guides for conducting negotiations and drafting agreements, Discovering Agreement empowers readers to generate immediate, positive change in their legal interactions and in how the legal system impacts their business relationships. When put into practice, Discovering Agreement has the added potential of catalyzing long-term, systemic change in the legal system itself.”

Disqualifying the High Court: Supreme Court Recusal and the Constitution

Virelli, Louis J.
KF8861 .V57 2016


Since at least the time of Justinian—under statutes, codes of judicial ethics, and the common law—judges have been expected to recuse themselves from cases in which they might have a stake. The same holds true for the justices of the US Supreme Court. For instance, there were calls for Ruth Bader Ginsburg and Elena Kagan, both of whom had officiated at gay weddings,to recuse themselves from the recent marriage equity case, Obergefell v. Hodges. Even a case like this, where no justice bowed out, reveals what a tricky ethical issue recusal can be. but as Louis J. Virelli demonstrates in this provocative work, recusal at the Supreme Court also presents questions of constitutional power. Disqualifying the High Court shows that our current understanding of how and when justices should recuse themselves is at odds with our constitutional design.

Viewing recusal through a constitutional lens, Virelli reveals new and compelling information about how justices should decide recusal questions and, in turn, how our government should function more broadly. Along the way he traces the roots and development of federal recusal law in America from as early as the Roman Empire up to the present day. The Supreme Court’s unique place at the top of the judicial branch protests the justices from some forms of congressional interference. Virelli argues that constitutional law, in particular the separation of powers, prohibits Congress from regulating the recusal practices of the Supreme Court. Instead those decisions must be left to the justices themselves, grounded in the principles of due process—assuring parties fair treatment by the judicial system—and balanced against the justices’ rights to free speech.

Along with the clarity it brings to this highly controversial issue, Virelli’s work also offers insight into constitutional problems presented by separation of powers. It will inform our evolving understanding of theory and practice in the American judicial system.

Foreign Affairs Federalism: The Myth of National Exclusivity

Glennon, Michael J.
KF4651 .G595 2016


Challenging the myth that the federal government exercises exclusive control over U.S. foreign-policymaking, Michael J. Glennon and Robert D. Sloane propose that we recognize the prominent role that states and cities now play in that realm. Foreign Affairs Federalism provides the first comprehensive study of the constitutional law and practice of federalism in the conduct of U.S. foreign relations. It could hardly be timelier. States and cities recently have limited greenhouse gas emissions, declared nuclear free zones and sanctuaries for undocumented immigrants, established thousands of sister-city relationships, set up informal diplomatic offices abroad, and sanctioned oppressive foreign governments. Exploring the implications of these and other initiatives, this book argues that the national interest cannot be advanced internationally by Washington alone. Glennon and Sloane examine in detail the considerable foreign affairs powers retained by the states under the Constitution and question the need for Congress or the president to step in to provide “one voice” in foreign affairs. They present concrete, realistic ways that the courts can update antiquated federalism precepts and untangle interwoven strands of international law, federal law, and state law. The result is a lucid, incisive, and up-to-date analysis of the rules that empower-and limit-states and cities abroad.

The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy

Gizzi, Michael C.
KF9630 .G59 2016


When the Founders penned the Fourth Amendment to the Constitution, it was not difficult to identify the “persons, houses, papers, and effects” they meant to protect; nor was it hard to understand what “unreasonable searches and seizures” were. The Fourth Amendment was intended to stop the use of general warrants and writs of assistance and applied primarily to protect the home. Flash forward to a time of digital devices, automobiles, the war on drugs, and a Supreme Court dominated by several decades of the jurisprudence of crime control, and the legal meaning of everything from “effects” to “seizures” has dramatically changed. Michael C. Gizzi and R. Craig Curtis make sense of these changes in The Fourth Amendment in Flux. The book traces the development and application of search and seizure law and jurisprudence over time, with particular emphasis on decisions of the Roberts Court.

Cell phones, GPS tracking devices, drones, wiretaps, the Patriot Act, constantly changing technology, and a political culture that emphasizes crime control create new challenges for Fourth Amendment interpretation and jurisprudence. This work exposes the tensions caused by attempts to apply pretechnological legal doctrine to modern problems of digital privacy. In their analysis of the Roberts Court’s relevant decisions, Gizzi and Curtis document the different approaches to the law that have been applied by the justices since the Obama nominees took their seats on the court. Their account, combining law, political science, and history, provides insight into the court’s small group dynamics, and traces changes regarding search and seizure law in the opinions of one of its longest serving members, Justice Antonin Scalia.

At a time when issues of privacy are increasingly complicated by technological advances, this overview and analysis of Fourth Amendment law is especially welcome—an invaluable resource as we address the enduring question of how to balance freedom against security in the context of the challenges of the twenty-first century.

Indigenous Peoples and Human Rights: International and Regional Jurisprudence

Saul, Ben
K3247 .S28 2016


This book provides a comprehensive examination of the treatment of Indigenous peoples in international law and from a comparative law perspective. While scholarly in approach, it is also intended to be used as a textbook for university students, and therefore covers a broad range of topics relevant to the study of Indigenous People and International Law. The book first considers the theory and practice of international law in encounters between Indigenous peoples and European colonial powers. It examines the prevailing legal doctrines governing acquisition of title to territory, underlying concepts of sovereignty, authority and self-determination, and competing theoretical approaches to conceptualising Indigenous legal interests. It then investigates how domestic legal systems applied, ignored or challenged relevant international law norms during the colonial era and explores the dominant legal discourses operating at the national level. The book goes on to consider how international law has developed to enable Indigenous peoples to challenge their treatment in national legal systems, particularly through the human rights machinery and political organs of the UN. The book draws on the colonial and post-colonial experiences of Indigenous peoples across Australasia, America and Canada, Africa, the Middle East and Europe.

The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary

Thornberry, Patrick
K3242 .T46 2016


The Convention on the Elimination of All Forms of Racial Discrimination is the centrepiece of international efforts to address racial discrimination, defined in broad terms to include discrimination based on skin colour, descent, ethnic, and national origin. Victims of discrimination within the scope of the Convention include minorities, indigenous peoples, non-citizens, and caste or descent groups. Virtually all national societies are diverse in terms of ethnicity or ‘race’ and none is free from discrimination, making it one of the great issues of our time.

Against the background of international human rights standards and mechanisms to counter racial and ethnic discrimination, this book provides the first comprehensive legal analysis of the provisions of the Convention on an article-by article basis. The book addresses the place of the Convention within the broader framework of United Nation’s action against discrimination. The different chapters analyse and discuss broad topics of race, ethnicity, and international law, the genesis and drafting of the Convention, the aims and objectives of the Convention in light of its preamble, and principles of non-discrimination and equality. In particular, the book includes a critical appraisal of the contribution of the Convention to the eradication of racial discrimination. It also reflects on whether there is scope for modification of the substance or procedures of the Convention in light of challenges arising from enhanced transnational population movements, the intersection between discrimination on the ground of race and discrimination against religious communities, and the intersection of racial and gender-based discrimination.

Louis D. Brandeis: American Prophet

Rosen, Jeffrey
KF8745.B67 R67 2016


According to Jeffrey Rosen, Louis D. Brandeis was “the Jewish Jefferson,” the greatest critic of what he called “the curse of bigness,” in business and government, since the author of the Declaration of Independence. Published to commemorate the hundredth anniversary of his Supreme Court confirmation on June 1, 1916, Louis D. Brandeis: American Prophet argues that Brandeis was the most farseeing constitutional philosopher of the twentieth century. In addition to writing the most famous article on the right to privacy, he also wrote the most important Supreme Court opinions about free speech, freedom from government surveillance, and freedom of thought and opinion. And as the leader of the American Zionist movement, he convinced Woodrow Wilson and the British government to recognize a Jewish homeland in Palestine. Combining narrative biography with a passionate argument for why Brandeis matters today, Rosen explores what Brandeis, the Jeffersonian prophet, can teach us about historic and contemporary questions involving the Constitution, monopoly, corporate and federal power, technology, privacy, free speech, and Zionism.

Love Unites Us: Winning the Freedom to Marry in America

KF539 .L68 2016


Victory may sometimes look like a sudden revolution when, in truth, it rests on years of struggle. The June 2015 decision in Obergefell v. Hodges is a sweeping victory for the freedom to marry, but it was one step in a long process. Love Unites Us is the history of activists’ passion and persistence in the struggle for marriage rights for same-sex couples in the United States, told in the words of those who waged the battle.

Launching the fight for the freedom to marry was neither an obvious nor an uncontested strategy. To many activists, achieving marriage equality seemed far-fetched, but the skeptics were proved wrong. Proactive arguments in favor of love, family, and commitment were more effective than arguments that focused on rights and the goal of equality at work. Telling the stories of people who loved and cared for one another, in sickness and in health, cut through the antigay noise and moved people—not without backlash and not overnight, but faster than most activists and observers had ever imagined. With compelling stories from leading attorneys and activists including Evan Wolfson, Mary L. Bonauto, Jon W. Davidson, and Paul M. Smith, Love Unites Us explains how gay and lesbian couples achieved the right to marry.

The National Historic Preservation Act: Past, Present, and Future

KF4310.A3281966 N38 2016


Assessing fifty years of the National Historic Preservation Act (NHPA), passed in 1966, this volume examines the impact of this key piece of legislation on heritage practices in the United States. The editors and contributing authors summarize how we approached compliance in the past, how we approach it now, and how we may approach it in the future. This volume presents how federal, state, tribal entities, and contractors in different regions address compliance issues; examines half a century of changes in the level of inventory, evaluation and mitigation practices, and determinations of eligibility; describes how the federal and state agencies have changed their approach over half a century; the Act is examined from the Federal, SHPO, THPO, Advisory Council, and regional perspectives.

Using case studies authored by well-known heritage professionals based in universities, private practice, tribes, and government, this volume provides a critical and constructive examination of the NHPA and its future prospects. Archaeology students and scholars, as well heritage professionals, should find this book of interest.

Popular Culture and Legal Pluralism: Narrative as Law

Adams, Wendy A.
K236 .A33 2017


Drawing upon theories of critical legal pluralism and psychological theories of narrative identity, this book argues for an understanding of popular culture as legal authority, unmediated by translation into state law. In narrating our identities, we draw upon collective cultural narratives, and our narrative/nomos obligational selves become the nexus for law and popular culture as mutually constitutive discourse.

The author demonstrates the efficacy and desirability of applying a pluralist legal analysis to examine a much broader scope of subject matter than is possible through the restricted perspective of state law alone. The study considers whether presumptively illegal acts might actually be instances of a re-imagined, alternative legality, and the concomitant implications. As an illustrative example, works of critical dystopia and the beliefs and behaviours of eco/animal-terrorists can be understood as shared narrative and normative commitments that constitute law just as fully as does the state when it legislates and adjudicates.

This book will be of great interest to academics and scholars of law and popular culture, as well as those involved in interdisciplinary work in legal pluralism.

A Pound of Flesh: Monetary Sanctions as Punishment for the Poor

Harris, Alexes
KF9745 .H37 2016


Over seven million Americans are either incarcerated, on probation, or on parole, with their criminal records often following them for life and affecting access to higher education, jobs, and housing. Court-ordered monetary sanctions that compel criminal defendants to pay fines, fees, surcharges, and restitution further inhibit their ability to reenter society. In A Pound of Flesh, sociologist Alexes Harris analyzes the rise of monetary sanctions in the criminal justice system and shows how they permanently penalize and marginalize the poor. She exposes the damaging effects of a little-understood component of criminal sentencing and shows how it further perpetuates racial and economic inequality.

The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law

Mayerfeld, Jamie
K3240 .M3834 2016


International human rights law is often criticized as an infringement of constitutional democracy. In The Promise of Human Rights, Jamie Mayerfeld argues to the contrary that international human rights law provides a necessary extension of checks and balances and therefore completes the domestic constitutional order. In today’s world, constitutional democracy is best understood as a cooperative project enlisting both domestic and international guardians to strengthen the protection of human rights. Reasons to support this view may be found in the political philosophy of James Madison, the principal architect of the U.S. Constitution.

The Promise of Human Rights presents sustained theoretical discussions of human rights, constitutionalism, democracy, and sovereignty, along with an extended case study of divergent transatlantic approaches to human rights. Mayerfeld shows that the embrace of international human rights law has inhibited human rights violations in Europe whereas its marginalization has facilitated human rights violations in the United States. A longstanding policy of “American exceptionalism” was a major contributing factor to the Bush administration’s use of torture after 9/11.

Mounting a combination of theoretical and empirical arguments, Mayerfeld concludes that countries genuinely committed to constitutional democracy should incorporate international human rights law into their domestic legal system and accept international oversight of their human rights practices.

The Public Law of Gender: From the Local to the Global

K3243 .P83 2016


With the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, it is timely to document the raft of legal reform and to critically analyse its effectiveness. In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law’s structuring of politics, governing and gender in a new global frame. Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains.

Religion as Empowerment: Global Legal Perspectives

K3258 .R45 2016


This volume shows how and why legal empowerment is important for those exercising their religious rights under various jurisdictions, in conditions of legal pluralism. At the same time, it also questions the thesis that as societies become more modern, they also become less religious.

The authors look beyond the rule of law orthodoxy in their consideration of the freedom of religion as a human right and place this discussion in a more plurality-sensitive context. The book sheds more light on the informal and/or customary mechanisms that explain the limited impact of law on individuals and groups, especially in non-Western societies. The focus is on discussing how religion and the exercise of religious rights may or may not empower individuals and social groups and improve access to human rights in general.

This book is important reading for academics and practitioners of law and religion, religious rights, religious diversity and cultural difference, as well as NGOs, policy makers, lawyers and advocates at multicultural jurisdictions. It offers a contemporary take on comparative legal studies, with a distinct focus on religion as an identity marker.

Scalia’s Court: A Legacy of Landmark Opinions and Dissents

Scalia, Antonin
KF213.S32 R56 2016


The sudden passing of Justice Antonin Scalia shook America. After almost thirty years on the Supreme Court, Scalia had become as integral to the institution as the hallowed room in which he sat. His wisecracking interruptions during oral arguments, his unmatched legal wisdom, his unwavering dedication to the Constitution, and his blistering dissents defined his leadership role on the court and inspired new generations of policymakers and legal minds.

Now, as Republicans and Democrats wage war over Scalia’s lamentably empty Supreme Court seat, Kevin Ring, former counsel to the U.S. Senate’s Constitution Subcommittee, has taken a close look at the cases that best illustrate Scalia’s character, philosophy, and legacy. In Scalia’s Court: A Legacy of Landmark Opinions and Dissents, Ring collects Scalia’s most memorable opinions on free speech, separation of powers, race, religious freedom, the rights of the accused, abortion, and more; and intersperses Scalia’s own words with an analysis of his legal reasoning and his lasting impact on American jurisprudence.

“I don’t worry about my legacy,” Scalia once told an audience at the National Archives. “Just do your job right, and who cares?”

Now that “the lion of American law has left the stage,” as the U.S. Attorney General put it, it is for the rest of America to worry about his legacy—and to care.

Scholarly Misconduct: Law, Regulation, and Practice

Freckelton, Ian R.
K3748 .F74 2016


Professional misconduct within the academic community is highly publicized. Retractions of falsified research have reached record levels and allegations of fraud and misconduct by scholars generate high-profile investigations and sometimes professional disgrace. Such cases frequently reach the courts, with tribunals determining whether research fraud, plagiarism, sexual misconduct, defamation, discrimination, forensic impropriety, thefts, and other forms of improper behavior have been committed. With claims including patient deaths, miscarriages of justice, and exploitation of funding agencies, the legal, reputational, and financial stakes for the individuals and institutions concerned are extremely high.

Scholarly Misconduct: Law, Practice, and Regulation is the first text of its kind to scrutinize the topic of academic integrity through a legal lens and across disciplines. Freckelton chronicles and analyses case law from around the globe, looking specifically at the legal and regulatory responses that were generated. The work also assesses the current policies and practices of academic and research institutions and government agencies worldwide. Finally, it reflects on the measures that need to be undertaken to reclaim and promote scholarly integrity and to institute rigorous, fair, and clear processes to establish whether scholars have indeed engaged in misconduct.

Sex and Harm in the Age of Consent

Fischel, Joseph J.
KF9325 .F57 2016


Sex and Harm in the Age of Consent cautions against the adoption of consent as our primary determinant of sexual freedom. For Joseph J. Fischel, consent is not necessarily always ethically sound. It is, he argues, a moralized fiction, and it churns out figures for its normativity: the predatory sex offender and the innocent child.

Examining the representation of consent in U.S. law and media culture, Fischel contends that the figures of the sex offender and the child are consent’s alibi, its negative space, enabling fictions that allow consent to do the work cut out for it under late modern sexual politics. Engaging legal, queer, feminist, and political theory, case law and statutory law, and media representations, Fischel proposes that we change our adjudicative terms from innocence, consent, and predation to vulnerability, sexual autonomy, and “peremption,” which he defines as the uncontrolled disqualification of possibility. Such a shift in theory, law, and life would be less damaging for young people, more responsive to sexual violence, and better for sex.

Students’ Right to Speak: The First Amendment in Public Schools

Salkin, Erica R.
KF4772 .S25 2016


In 1969, Supreme Court Justice Abe Fortas called free speech in public schools a “hazardous freedom,” but one well worth the risk. A half-century later, with technology enabling students to communicate in ways only dreamed about in Fortas’ time, that freedom seems more hazardous than ever.
Yet still worth the risk, given equal respect for students’ First Amendment rights and for the requirements of an orderly educational institution. This book provides educators, administrators, school board members and parents a starting point in creating student speech policies that encourage the responsible exercise of constitutional freedoms, while respecting the learning environment.
The author discusses the history, sociology, law and philosophy surrounding student speech, demonstrating that free speech and effective teaching and administration in public schools are not mutually exclusive.

The Supreme Court on Unions: Why Labor Law Is Failing American Workers

Getman, Julius G.
KF3389 .G48 2016


Labor unions and courts have rarely been allies. From their earliest efforts to organize, unions have been confronted with hostile judges and antiunion doctrines. In this book, Julius G. Getman argues that while the role of the Supreme Court has become more central in shaping labor law, its opinions betray a profound ignorance of labor relations along with a persisting bias against unions. In The Supreme Court on Unions, Getman critically examines the decisions of the nation’s highest court in those areas that are crucial to unions and the workers they represent: organizing, bargaining, strikes, and dispute resolution.

As he discusses Supreme Court decisions dealing with unions and labor in a variety of different areas, Getman offers an interesting historical perspective to illuminate the ways in which the Court has been an influence in the failures of the labor movement. During more than sixty years that have seen the Supreme Court take a dominant role, both unions and the institution of collective bargaining have been substantially weakened. While it is difficult to measure the extent of the Court’s responsibility for the current weak state of organized labor and many other factors have, of course, contributed, it seems clear to Getman that the Supreme Court has played an important role in transforming the law and defeating policies that support the labor movement.

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