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Guide To Bill Of Attainder Clauses In Article I, Sections 9 And 10, Matthew J. Steilen

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These are commentaries on the Bill of Attainder Clauses in Article I, sections 9 and 10. Each is 2000 words long. They are forthcoming in the 3d edition of Heritage Guide to the Constitution. Topics covered include the history of English bills of attainder, the meaning of "bill," "notorious," "attainder," and other key terms, bills of attainder passed against loyalists during the American revolution, the Josiah Philips case, the legislative history of the clauses in the Philadelphia Convention, early Supreme Court decisions involving bills of attainder, and the modern doctrine. Inline citations and a short bibliography are included. The author …

Preface, Rebecca Redwood French

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No abstract provided.

Amphibious Legal Geographies: Toward Land–Sea Regimes, Irus Braverman

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This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book discusses the juridical thinking that has enshrined the land/sea divide into contemporary governmental infrastructures, disciplinary traditions, and regulatory apparatuses, and charts the disastrous implications that such a legal fixation on the land/sea binary has wrought on human and other-than-human lifeworlds. As the collection proceeds, a second broad theme emerges, building on the first: when one rethinks the abstraction of law as played out on the ground, the “ground” itself shifts and fundamental divisions between land and sea that serve as the …

Reparations For Slavery: A Productive Strategy?, Makau Wa Mutua

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Published as Chapter 1 in Time for Reparations: A Global Perspective, Jacqueline Bhabha, Margareta Matache & Caroline Elkins, eds.

Subnational Constitutionalism In The United States: Powerful States In A Powerful Federation, James A. Gardner

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Published as Chapter 19 in Routledge Handbook of Subnational Constitutions and Constitutionalism, Patricia Popelier, Nicholas Aroney & Giacomo Delledonne, eds.

The United States has an extremely robust network of subnational constitutions. It is one of the few federations in the world in which subnational entities are understood to be fully competent polities with virtually complete constituent powers of self-organization and self-authorization. The authority to adopt a subnational constitution is consequently understood to be an incident of subnational sovereignty, a concept in turn derived from a conception of the basic federal order itself as highly decentralized.

Judith Shklar’S Critique Of Legalism, Seyla Benhabib, Paul Linden-Retek

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Published as Chapter 16 in The Cambridge Companion to the Rule of Law, Jens Meierhenrich & Martin Loughlin, eds.

Commentary On Emerson V. Magendantz, Lucinda M. Finley

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Published as Chapter 13 of Feminist Judgments: Rewritten Tort Opinions, Martha Chamallas & Lucinda M. Finley, eds. (Cambridge University Press 2020). Emerson v. Magendantz assesses how to measure harm when people get pregnant after a negligently performed sterilization, or have disabled children after genetic counseling or prenatal testing misdiagnosed the risk. The court permitted parents to recover child-rearing costs only for disabled children, reasoning that the emotional benefits of a healthy child invariably outweigh its economic burdens. Critiquing this reasoning as a double insult to the disabled and to the importance of reproductive autonomy, the feminist rewritten opinion uses the …

Sez Who? Critical Legal History Without A Privileged Position, John Henry Schlegel

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Published as Chapter 30 in Oxford Handbook of Historical Legal Research, Markus D. Dubber & Christopher Tomlins, eds.

Scholars active in the Critical Legal Studies movement of the 1980s regularly attacked the scholarship of liberal legalist scholars by using a variety of then contemporary epistemological theories that argued for the impossibility of any observer attaining a neutral position from which to observe social activities. Somewhat surprisingly, liberal legalist scholars seldom turned this criticism back at the work of CLS scholars who themselves never criticized their own work as they did that of other scholars. The examination of several pieces of …

Privacy And The Right To One’S Image: A Cultural And Legal History, Samantha Barbas

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Published as Chapter 9 in Injury and Injustice: The Cultural Politics of Harm and Redress, Anne Bloom, David M. Engel & Michael McCann, eds.

Chairs, Stairs, And Automobiles: The Cultural Construction Of Injuries And The Failed Promise Of Law, David M. Engel

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Published as Chapter 5 in Injury and Injustice: The Cultural Politics of Harm and Redress, Anne Bloom, David M. Engel & Michael McCann, eds.

Looking Backward, Looking Forward, David M. Engel

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Published as Chapter 17 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song.

Client Selection, Lynn Mather

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Published as Chapter 6 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song.

Putting “Human Rights” Back Into The U.N. Guiding Principles On Business And Human Rights: Shifting Frames And Embedding Participation Rights, Tara J. Melish

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Published as Chapter 4 in Business and Human Rights: Beyond the End of the Beginning, Cesar Rodriguez-Garavito, ed.

Africans And The Icc: Hypocrisy, Impunity, And Perversion, Makau Wa Mutua

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Published as Chapter 3 in Africa and the ICC: Perceptions of Justice, Kamari M. Clarke, Abel S. Knottnerus, & Eefje de Volder, eds.

When Popular Decisions Rest On Shaky Foundations: Systemic Implications Of Selected Wto Appellate Body Trade Remedies Jurisprudence, Meredith Kolsky Lewis

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Published as Chapter 9 in International Economic Law and Governance: Essays in Honour of Mitsuo Matsushita, Julien Chaisse & Tsai-yu Lin, eds.

This chapter argues that the WTO Appellate Body has not been consistent in applying Article 31 of the VCLT and considering the context of the relevant treaty text in light of its object and purpose. It has instead either been overly mechanistic in its textual interpretation or has strayed from the text, sometimes with the appearance of preferring an outcome-based result. Part I of the chapter discusses the appropriate role context should play in interpreting the WTO agreements. …

Personal Responsibility For Systemic Inequality, Martha T. Mccluskey

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Published as Chapter 15 in Research Handbook on Political Economy and Law, Ugo Mattei & John D. Haskell, eds.

Equality has faded as a guiding ideal for legal theory and policy. An updated message of personal responsibility has helped rationalize economic policies fostering increased inequality and insecurity. In this revised message, economic “losers” should take personal responsibility not only for the harmful effects of their individual economic decisions, but also for the harmful effects of systemic failures beyond their individual control or action. In response to the 2008 financial crisis, this re-tooled message of personal responsibility promoted mass austerity in …

Buddhism And Law In Tibet, Rebecca Redwood French

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Published as Chapter 17 in Buddhism and Law: An Introduction, Rebecca Redwood French & Mark A. Nathan, eds.

The Tibetan plateau is an immense high-altitude desert that, except for a few larger towns, was very sparsely populated with agriculturalists, nomadic herders, and merchant traders prior to 1960. The small population and minimal urbanization are the most important distinguishing features of this Buddhist country because concentrated populations are commonly connected to the development of government administration, law, and intellectual production. Despite this, Tibetan culture is known for its long history of enormous production of literary, scholarly, and religious works. Books on …

Comparative Criminal Law, Luis E. Chiesa

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Published as Chapter 47 in The Oxford Handbook of Criminal Law, Markus Dubber & Tatjana Hörnle, eds.

Criminal law is a parochial discipline. Courts and scholars in the English speaking world seldom take seriously the criminal statutes, cases and scholarly writings published in the non-English speaking world. The same is true the other way around. This is unfortunate. Much can be learned from comparing the way in which the world’s leading legal systems approach important questions of criminal theory.

This Chapter introduces the reader to comparative criminal law with the aim of demonstrating how comparative analysis can enrich both domestic …

An Eye Toward Effective Enforcement: A Technical-Comparative Approach To The Drafting Negotiations, Tara J. Melish

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Published as Chapter 5 in Human Rights and Disability Advocacy, Maya Sabatello & Marianne Schulze, eds.

The unprecedented level of civil society participation that took place in the drafting of the U.N. Convention on the Rights of Persons with Disabilities (CRPD) constitutes a major key to its success -- laying a solid foundation for the much longer and harder process of implementation ahead. This piece addresses how one civil society organization -- Disability Rights International (DRI) -- approached the negotiation process. Part I explains the strategic approach DRI adopted, highlighting its methodology, the guiding principles it embraced, and the resulting …

Tribes As Conservation Easement Holders: Is A Partial Property Interest Better Than None?, Jessica Owley

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Published as Chapter 8 in Tribes, Land, and the Environment, Sarah Krakoff & Ezra Rosser.

How And Why Do Lawyers Misbehave? Lawyers, Discipline, And Collegial Control, Lynn M. Mather

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Published as Chapter 6 in The Paradox of Professionalism: Lawyers and the Possibility of Justice, Scott L. Cummings, ed.

A fundamental principle of professional labor is that the members of a specialized occupation, as professionals, enjoy autonomy. In sociologist Elliot Freidson's words, professionals “control their own work.” The practitioners themselves decide what constitutes acceptable or appropriate behavior. Professions establish rules and systems of self-regulation to teach and enforce the expected standards of conduct on their members. One way, then, to assess legal professionalism is to ask how well lawyers regulate themselves. The extensive literature on lawyer regulation paints a negative …

From The Welfare State To The Militarized Market: Losing Choices, Controlling Losers, Martha T. Mccluskey

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Published as Chapter 1 in Accumulating Insecurity: Violence and Dispossession in the Making of Everyday Life, Shelley Feldman, Charles Geisler & Gayatri A. Menon, eds.

Beneath a libertarian surface, free market economic ideas and policies have helped rationalize the strengthening of anti-democratic moral and political fundamentalism. The triumph of market freedom has been accompanied by increasing authoritarian government control in many spheres.

This chapter explains how a two-step rhetorical move in prevailing economic ideology turns authoritarianism and austerity into the route to freedom and growth. First, free market ideology constructs the increasingly limited and bad economic choices of a declining …

A Critique Of Rights In Transitional Justice: The African Experience, Makau Wa Mutua

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Published in Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, Gaby Oré Aguilar & Felipe Gómez Isa, eds.

This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were …

Suffrage And The Terms Of Labor, Robert J. Steinfeld

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Published as Chapter 9 in Human Capital and Institutions: A Long Run View, David Eltis, Frank D. Lewis & Kenneth L. Sokoloff, eds.

Great books often harbor deep tensions, which are one source of their enduring power. Time on the Cross by Robert Fogel and Stanley Engerman is a good example (Fogel and Engerman 1974). On the one hand, Time on the Cross argued that the economic science of Cliometrics was indispensable for a proper understanding of the past. Human beings have always been primarily motivated by the desire for gain, and to understand their behavior it is essential to …

Razing The Citizen: Economic Inequality, Gender, And Marriage Tax Reform, Martha T. Mccluskey

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Published as Chapter 12 in Gender Equality: Dimensions of Women's Equal Citizenship, Linda C. McClain & Joanna L. Grossman, eds.

This chapter links the failure of U.S. social citizenship ideals to a broader weakness in U.S. ideas citizenship. To better advance policies of economic equality, U.S. law and politics needs a stronger vision not just of economic equality, but of gender equality and of democracy in general. Feminist scholars have analyzed how ideas about gender help shape the common assumption that the costs of raising and sustaining capable, productive citizens are largely private family responsibilities. But ideas about gender also …

David Engel And "The Oven Bird's Song" (Edited Interview), David M. Engel

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Published as Chapter 8 in Conducting Law and Society Research: Reflections on Methods and Practice, Simon Halliday & Patrick Schmidt, eds.

Understanding litigiousness involves many perspectives on how societies generate, shape, and process disputes. Whereas some may begin the study of disputing with the law and the formal institutions charged with implementing it, or what happens “in court,” a long tradition of Law and Society scholarship has emphasized the importance of seeing how cultural practices give life and meaning to the law. Though some of this scholarship has come from anthropology, much of it has been produced by scholars from …

Sacrifice And Sovereignty, Mateo Taussig-Rubbo

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Published as Chapter 4 in States of Violence: War, Capital Punishment, and Letting Die, Austin Sarat & Jennifer L. Cuthbert, eds.

This Chapter examines a complement to the concept of the state’s monopoly of legitimate violence, what I call a ‘monopoly of sacrifice.’ It describes some of the difficulties the United States government has confronted in authoritatively designating which and whose losses and deaths in the name of the nation are considered transcendent or sacred. Through detailed case studies, it describes a state that uses legal form and policy to construe certain deaths as sacrificial, and others as banal, and …

How Queer Theory Makes Neoliberalism Sexy, Martha T. Mccluskey

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Published in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero, eds.

Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private …

Law And Religion In Colonial America, Mark Mcgarvie, Elizabeth B. Mensch

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Published in Cambridge History of American Law, Volume 1: Early America (1580-1815), Michael Grossberg & Christopher Tomlins, eds.

The Legal Profession: From The Revolution To The Civil War, Alfred S. Konefsky

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Published as Chapter 3 in The Cambridge History of Law in America, Volume II, The Long Nineteenth Century (1789–1920), Michael Grossberg & Christopher Tomlins, eds.

The American legal profession matured and came to prominence during the century prior to the Civil War. Before the Revolution, across some 150 years, lawyers in different colonies underwent different experiences at different times. By the beginning of the eighteenth century, more lawyers were entering professional life. After the revolution and the defection by the Tory lawyers, the remaining quickly burnished their images in the glow of republican ideals while grasping new market opportunities. For …